Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Chu v Chen [2025] NSWCA 76 Hearing dates: 26 March 2025 Date of orders: 16 April 2025 Decision date: 16 April 2025 Before: Stern JA at [1];
Ball JA at [63];
Price AJA at [64]Decision: (1) Appeal dismissed.
(2) Appellant to pay the respondents’ costs.
Catchwords: CONSUMER LAW — Application of the Australian Consumer Law — whether primary judge was required to, but did not, make a finding as to whether the representations made were “false or misleading” and fell within the ambit of s 29(1)(b) of the Australian Consumer Law and s 12DB(1)(a) of the Australian Securities and Investments Commission Act 2001 (Cth)
Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), ss 12BB, 12DA, 12DB, 12GP
Civil Liability Act 2002 (NSW), s 34
Competition and Consumer Act 2010 (Cth), sch 2, ss 4, 18, 29
Fair Trading Act 1987 (NSW), ss 28, 32
Cases Cited: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2020) 278 FCR 450; [2020] FCAFC 130
Curtis v Curtis [2024] NSWCA 136
Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 277 CLR 186; [2023] HCA 8
Category: Principal judgment Parties: Gary Chu (Appellant)
Su-Hui Chen (First Respondent)
Teresa Chen Pty Ltd as Trustee for the Teresa Chen Superannuation Fund (Second Respondent)
A-Kan Chen Lan (Third Respondent)
Timothy Wayne Edstein (Fourth Respondent)
Amy Chu Yan Edstein (Fifth Respondent)Representation: Counsel:
Solicitors:
R D Marshall SC, M J Wells (Appellant)
D L Cook SC, N D Riordan (First, Second, Third, Fourth and Fifth Respondents)
Swaab (Appellant)
Antunes Lawyers (First, Second, Third, Fourth and Fifth Respondents)
File Number(s): 2024/00343923 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- New South Wales Supreme Court
- Jurisdiction:
- Equity
- Citation:
- Date of Decision:
- 6 September 2024
- Before:
- Hammerschlag CJ in Eq
- File Number(s):
- 2024/00343923
HEADNOTE
[This headnote is not to be read as part of the judgment]
The respondents are members of one family and the trustee for a super fund for the benefit of one family member. The appellant provided services to a property developer known as the Ralan Group (Ralan). He first met one of the respondents in 2013 when she was looking to purchase an apartment for herself and her son to live in. Ralan had a “Released Deposit Scheme” which entailed offering purchasers a high interest rate per annum if their deposits (paid for apartments not yet built) were released and lent under a loan agreement to Ralan for its own use, with the interest to be paid by crediting the purchaser on settlement of the purchase. As the primary judge described it, this was a Ponzi scheme (or a variation of one), whereby…
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- AGLC
- Chu v Chen [2025] NSWCA 76
- Case
- [2025] NSWCA 76
- Decision Date
CaseChat Overview and Summary
The central legal issues before the appellate court were whether the primary judge had erred by failing to make a specific finding as to whether the representations made by Mr. Chu were "false or misleading" and, consequently, whether they fell within the scope of section 29(1)(b) of the Australian Consumer Law and section 12DB(1)(a) of the *Australian Securities and Investments Commission Act 2001* (Cth).
The appellate court dismissed the appeal, finding no error in the primary judge's decision. The court reasoned that while a specific finding on the falsity or misleading nature of the representations was not explicitly articulated in the precise terms of the statutory provisions, the primary judge's findings of fact and conclusions regarding the appellant's conduct and the resulting loss were sufficient to establish liability under the relevant consumer protection legislation. The court applied established principles of statutory interpretation and the law of misrepresentation, concluding that the substance of the primary judge's findings addressed the core elements of the alleged contraventions.
Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondents' costs.
Orders
Orders of the court
(1) Appeal dismissed.
(2) Appellant to pay the respondents’ costs.
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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