Cheng v Chan

Local Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Cheng v Chan [2022] NSWLC 25

Hearing dates:

9 and 10 December 2021, further written submissions

Date of orders:

08 July 2022

Decision date:

08 July 2022

Jurisdiction:

Civil

Before:

Crompton LCM

Decision:

Dismiss the claim, Judgment for Defendant

Catchwords:

CONSUMER LAW — Misleading or deceptive conduct — Representations — Silence or non-disclosure

Legislation Cited:

Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 18

Cases Cited:

Addenbrooke Pty Ltd (ACN 055 973 576) v Duncan and Others (No 2) (2017) 348 ALR 1

Briginshaw v Briginshaw (1938) 60 CLR 336

Helton v Allen (1940) 63 CLR 691

Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357

Watson v Foxman (1995) 49 NSWLR 315

Category:

Principal judgment

Parties:

Brenda Choy Fong Cheng (Plaintiff)
Roy Chan (Defendant)

Representation:

Counsel:
Mr Goodyear (Plaintiff)
Mr Philips (Defendant)

Solicitors:
Ma & Company Solicitors (Plaintiff)
Keypoint Law (Defendant)

File Number(s):

2019/00366808

Publication restriction:

Nil

JUDGMENT

BACKGROUND

1. The plaintiff, Brenda Choy Fong Cheng, and her husband, Kwai Tak Cheng (also known as Denny) reside in Hong Kong, China. Their son Nelson Cheng resides in Woolloomooloo, Sydney. The plaintiff asserts that Mr Cheng (Denny) was her agent in relation to this matter.

2. The defendant is Roy Chan. Nelson Cheng and the defendant met each other at St Joseph’s College in 1996. In 2003, the defendant ran into Nelson who is a chef.

3. On 1 April 2010 the company the subject of these proceedings, The Rice Den Pty Ltd, was incorporated, then named Rice The Experience Pty Ltd. In August 2010 the company ran a business of a restaurant from premises in Chatswood.

4. During 2010 and 2011 Nelson Cheng would visit the Chatswood premises. Every now and then on a Monday, Nelson and Roy would catch up at the Woolloomooloo premises. During this time Roy offered Nelson a job at the Chatswood premises and on 11 February 2013 Nelson commenced working there.

5. In about the middle of 2014 the company was looking at ceasing operations from the Chatswood premises and commencing operations at premises in St Leonards. Nelson and Roy discussed Nelson investing an amount of $80,000 in the company. Prior to September 2014 Nelson informed Roy that, due to Nelson going through a divorce, the investment of $80,000 would be done in the plaintiff’s name.

6. On 3 September 2014, in Hong Kong, before departing for Australia the plaintiff, by written General Power of Attorney, appointed Mr Cheng (Denny) as her Attorney to liaise and negotiate with relevant parties and enter into any agreements, instruments or relevant documents in relation to acquiring shares in the company.

7. On 29 September 2014 the plaintiff, Mr Cheng (Denny) and the defendant met at the Elbow Room Café in Chatswood in relation to the investment, for the first and only time. That meeting lasted for approximately 30 minutes with 15 minutes of the time being spent on the issue of the…