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Chen v Feng

Chen v Feng

Case [2020] NSWCATCD 8 5 February 2020

Misleading and Deceptive Conduct

Unconscionable Conduct

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Chen v Feng [2020] NSWCATCD 8
Hearing dates: 26 August 2019
Final submissions 27 September 2019
Date of orders: 05 February 2020
Decision date: 05 February 2020
Jurisdiction: Consumer and Commercial Division
Before: P French, General Member
Decision:
(1) Mr Forbes’ application to stay the proceedings is refused.
(2) Mr Forbes’ application to adjourn the proceedings is refused.
(3) Mr Forbes’ application to reopen the hearing is refused.
(4) Mr Forbes’ application for summary dismissal of the application on the ground that the Tribunal does not have jurisdiction to deal with it is refused.
(5) Mr Forbes’ application for summary dismissal of the application on the ground that the Tribunal is not a convenient forum for the determination of the dispute is refused.
(6) Mr Forbes’ application for summary dismissal of the whole or part of the claim on the ground that compensation may be available from a statutory compensation scheme is refused.
(7) Jeffrey Feng must pay Yilin Chen $837.30 immediately.
(8) The application is otherwise dismissed.

Catchwords:
CONSUMER CLAIM – rental guarantee and agency agreement – whether misleading and deceptive conduct – whether unconscionable conduct
JURISDICTION – whether relevant connection to NSW – whether inconvenient forum for determination of dispute – whether claim arises from the supply of services – availability of statutory compensation scheme
PRACTICE AND PROCEDURE – service of evidence - Tribunal’s obligation to provide a party with a reasonable opportunity to be heard – respondent’s access to evidence under control of Administrators of companies subject to external administration - application to reopen hearing – whether mental illness has affected respondent’s capacity to deal with application

Legislation Cited:
Australian Consumer Law (NSW)
Australian Securities and Investments Commission Act 2001 (Cth)
Civil and Administrative Tribunal Act 201 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Corporations Act 2001 (NSW)
Fair Trading Act 1987 (NSW)
Property, Stock and Business Agents Act 2002 (NSW)

Cases Cited: Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682
Australian Securities and Investments Commission v Kobelt [2019] HCA 18
Bobolas v Waverley Council [2016] NSWCA 139
Briginshaw v Briginshaw (1938) 60 CLR 336
Mesiha v Murrell [2017] NSWCATAP 1
Miller v Minister for Pensions [1947] 2 All ER 372
Mrjana v Imagine Education Australia Pty Ltd [2016] NSWCATAP 232
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81
Reid v Brett [2005] VSC 18
Smith v New South Wales Bar Association [1992] HCA 36
Vroth v Manildra Floor Mills Pty Ltd [1990] HCA 55
Wall v Barham [2017] NSWACTAP 61
Texts Cited:
Nil

Category: Principal judgment
Parties: Yilin Chen (Applicant)
Callum Forbes (First Respondent)
Jeffrey Feng (Second Respondent)
Representation: F Zhou (Applicant)
First Respondent (Sef-represented)

File Number(s): GEN 19/24796
Publication restriction: Nil

REASONS FOR DECISION

Introduction

This is an application by Yilin Chen (the consumer) an order pursuant to section 79N of the Fair Trading…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chen v Feng

Details

AGLC: Chen v Feng [2020] NSWCATCD 8
Case: [2020] NSWCATCD 8
Decision Date: 05 February 2020

CaseChat Overview and Summary

The proceedings in Chen v Feng involved a dispute between Yilin Chen, the applicant, and Jeffrey Feng, the respondent. Chen sought a consumer claim in relation to a rental guarantee and agency agreement, alleging that Feng engaged in misleading and deceptive conduct and unconscionable conduct. The dispute was heard in the relevant tribunal. The central legal issues the court needed to address included whether the tribunal had jurisdiction over the matter, whether the proceedings were conveniently located in New South Wales, and if the tribunal was the appropriate forum for resolving the dispute. Additionally, the court considered whether compensation might be available from a statutory compensation scheme.

The tribunal examined the jurisdictional aspects and found that there was a sufficient connection to New South Wales to warrant the proceedings. It was also determined that the forum was not inconvenient for the resolution of the dispute. The court further noted that the claim did not arise from the supply of services but rather from a contractual agreement, which fell within the tribunal's purview. Regarding the availability of statutory compensation, the tribunal found that such a scheme did not provide an alternative or exclusive remedy for the applicant's claims.

In its decision, the tribunal refused all applications by the respondent, including those for a stay, an adjournment, and a reopening of the hearing. It held that the tribunal had jurisdiction and that it was not an inconvenient forum for the determination of the dispute. Furthermore, the tribunal dismissed the argument that compensation might be available from a statutory scheme. The tribunal ordered that Jeffrey Feng must immediately pay Yilin Chen $837.30, and dismissed the application in all other respects.

Orders

Orders of the court

(1) Mr Forbes’ application to stay the proceedings is refused.

(2) Mr Forbes’ application to adjourn the proceedings is refused.

(3) Mr Forbes’ application to reopen the hearing is refused.

(4) Mr Forbes’ application for summary dismissal of the application on the ground that the Tribunal does not have jurisdiction to deal with it is refused.

(5) Mr Forbes’ application for summary dismissal of the application on the ground that the Tribunal is not a convenient forum for the determination of the dispute is refused.

(6) Mr Forbes’ application for summary dismissal of the whole or part of the claim on the ground that compensation may be available from a statutory compensation scheme is refused.

(7) Jeffrey Feng must pay Yilin Chen $837.30 immediately.

(8) The application is otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Chen v Feng [2020] NSWCATCD 8

Most Recent Citation

Migration International Group Pty Ltd ABN 36 632 311 847 v Mahr EDV GmbH [2023] NSWCATCD 122

Cases citing this decision · 1 of 1 shown

Migration International Group Pty Ltd ABN 36 632 311 847 v Mahr EDV GmbH
[2023] NSWCATCD 122 Para 38

…217 at p223-234 CE Heath Underwriting and Ins (Aust) Pty Ltd v Barden (Unreported, NSWSC, Rolfe J, 19 October 1994, BC9403144) Cheng v Feng [2020] NSWCATCD 8 at [38] Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 at [1] – [47] particularly [25] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ; and at [48] –…

View all 1 citing cases →

Cases cited in this decision · 12 of 12 shown

Australian Securities and Investments Commission v Kobelt
[2019] HCA 18 Para 80

…aning of the term “unconscionable conduct” was recently considered by the High Court in Australian Securities and Investments Commission v Kobelt [2019] HCA 18. That case concerned the use of the term in section 12CB(1) of the Australian Securities and Investments Commission Act 2001, however the terms of the pr…
Bobolas v Waverley Council
[2016] NSWCA 139 Para 22

…cultural & Indigenous Affairs [2003] FCA 1559 at [6] per Lindgren J; cited with approval by the NSW Court of Appeal in Bobolas v Waverley Council [2016] NSWCA 139 at [221 to 222].…
Australian Competition and Consumer Commission v Dukemaster Pty Ltd
[2009] FCA 682 Para 78

…In Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 at [10] Gordon J summarised the principles to be applied in determining if conduct is misleading and deceptive for the purposes of section 52 of the former Trade Practices Act 1974. Those principles have equal application to sec…
Reid v Brett
[2005] VSC 18 Para 26

…uth Wales Bar Association [1992] HCA 36 at [27]. The criteria governing the favourable exercise of that discretion were distilled in Reid v Brett [2005] VSC 18 as follows: (a) the further evidence must be so material that the interests of justice require its admission; (b) the further evidence if accepted would…
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1559 Para 22

…ndition would prevent him from participating effectively in the proceedings: NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [6] per Lindgren J; cited with approval by the NSW Court of Appeal in Bobolas v Waverley Council [2016] NSWCA 139 at [221 to 222].…
Smith v New South Wales Bar Association
[1992] HCA 36 Para 26

…eopen a case to admit further evidence after the hearing has concluded but before judgement is delivered: Smith v New South Wales Bar Association [1992] HCA 36 at [27]. The criteria governing the favourable exercise of that discretion were distilled in Reid v Brett [2005] VSC 18 as follows: (a) the further evide…
Voth v Manildra Flour Mills Pty Ltd
[1990] HCA 55 Para 39

…However, I am not satisfied that this is the case. The consumer submits, citing the plurality of the Court in Vroth v Manildra Floor Mills Pty Ltd [1990] HCA 55 at [30], that she has regularly invoked the jurisdiction of the Tribunal and that she therefore has a prima facie right to insist upon its exercise. I…
Briginshaw v Briginshaw
[1938] HCA 36 Para 86

…The consumer bears the onus of proving her case to the civil standard of proof, which is the balance of probabilities: Briginshaw v Briginshaw (1938) 60 CLR 336. This standard of proof was described by Lord Denning in Miller v Minister for Pensions [1947] 2 All ER 372 at [374] as requiring the Tribunal to be satisfied that an al…
Briginshaw v Briginshaw
[1938] HCA 34 Para 86

…The consumer bears the onus of proving her case to the civil standard of proof, which is the balance of probabilities: Briginshaw v Briginshaw (1938) 60 CLR 336. This standard of proof was described by Lord Denning in Miller v Minister for Pensions [1947] 2 All ER 372 at [374] as requiring the Tribunal to be satisfi…
HCA 66Prestige Auto Centre Pty Ltd v Apurva Mishra
[2014] NSWCATAP 81 Para 101

…the Rental Guarantee and Agency Agreement. For the reasons stated by the Appeal Panel of the Tribunal in Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [30] to [33], despite the relative informality of the Tribunal’s practice and procedure, a certified translation of a document in a foreign langua…
The Appeal Panel referred to Leisure Brothers Pty Ltd v Smith
[2017] NSWCATAP 1 Para 14

…hat Act, which is the just, quick and cheap resolution of the real issues in a proceeding: Wall v Barham [2017] NSWACTAP 61 at [31]; Mesiha v Murrell [2017] NSWCATAP 1 at [29 -60].…
[1955] 2 QB 327
[1955] 2 QB 327

…e signed the Agreement electronically. 13. Per His Honourable Campbell J at paragraph 334 of Entores Ltd v Miles Far East Corporation [1955] 2 QB 327, “The contract is only complete when the acceptance is received by the offeror: and the contract is made at the place where the acceptance is received”, the Agreemen…

Legislation cited in this decision · 7

Australian Securities and Investments Commission Act 2001 (Cth)
1 mention (from Para 80)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 13)
Civil and Administrative Tribunal Rules 2014 (NSW)
1 mention (from Para 10)
Corporations Act 2001 (Cth)
1 mention
Fair Trading Act 1987 (WA)
1 mention (from Para 1)
Property, Stock and Business Agents Act 2002 (NSW)
1 mention (from Para 2)
Trade Practices Act 1974 (Cth)
1 mention (from Para 78)

Medium Neutral Citation:	Chen v Feng [2020] NSWCATCD 8
Hearing dates:	26 August 2019 Final submissions 27 September 2019
Date of orders:	05 February 2020
Decision date:	05 February 2020
Jurisdiction:	Consumer and Commercial Division
Before:	P French, General Member
Decision:	(1) Mr Forbes’ application to stay the proceedings is refused. (2) Mr Forbes’ application to adjourn the proceedings is refused. (3) Mr Forbes’ application to reopen the hearing is refused. (4) Mr Forbes’ application for summary dismissal of the application on the ground that the Tribunal does not have jurisdiction to deal with it is refused. (5) Mr Forbes’ application for summary dismissal of the application on the ground that the Tribunal is not a convenient forum for the determination of the dispute is refused. (6) Mr Forbes’ application for summary dismissal of the whole or part of the claim on the ground that compensation may be available from a statutory compensation scheme is refused. (7) Jeffrey Feng must pay Yilin Chen $837.30 immediately. (8) The application is otherwise dismissed.
Catchwords:	CONSUMER CLAIM – rental guarantee and agency agreement – whether misleading and deceptive conduct – whether unconscionable conduct JURISDICTION – whether relevant connection to NSW – whether inconvenient forum for determination of dispute – whether claim arises from the supply of services – availability of statutory compensation scheme PRACTICE AND PROCEDURE – service of evidence - Tribunal’s obligation to provide a party with a reasonable opportunity to be heard – respondent’s access to evidence under control of Administrators of companies subject to external administration - application to reopen hearing – whether mental illness has affected respondent’s capacity to deal with application
Legislation Cited:	Australian Consumer Law (NSW) Australian Securities and Investments Commission Act 2001 (Cth) Civil and Administrative Tribunal Act 201 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Corporations Act 2001 (NSW) Fair Trading Act 1987 (NSW) Property, Stock and Business Agents Act 2002 (NSW)
Cases Cited:	Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 Australian Securities and Investments Commission v Kobelt [2019] HCA 18 Bobolas v Waverley Council [2016] NSWCA 139 Briginshaw v Briginshaw (1938) 60 CLR 336 Mesiha v Murrell [2017] NSWCATAP 1 Miller v Minister for Pensions [1947] 2 All ER 372 Mrjana v Imagine Education Australia Pty Ltd [2016] NSWCATAP 232 NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 Reid v Brett [2005] VSC 18 Smith v New South Wales Bar Association [1992] HCA 36 Vroth v Manildra Floor Mills Pty Ltd [1990] HCA 55 Wall v Barham [2017] NSWACTAP 61
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Yilin Chen (Applicant) Callum Forbes (First Respondent) Jeffrey Feng (Second Respondent)
Representation:	F Zhou (Applicant) First Respondent (Sef-represented)
File Number(s):	GEN 19/24796
Publication restriction:	Nil