Chu v Chen

Case [2025] NSWCA 76


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

Chen v Chu [2024] NSWSC 1139

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

Wass v DPP (2023) 111 NSWLR 210; [2023] NSWCA 71

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:
R D Marshall SC, M J Wells (Appellant)
D L Cook SC, N D Riordan (First, Second, Third, Fourth and Fifth Respondents)

Solicitors:
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:

[2024] NSWSC 1139

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 appeal concerned representations made by the appellant, Mr. Chu, to the respondents, Mr. and Mrs. Chen, regarding an investment opportunity. The dispute arose from allegations that these representations were false or misleading, leading to financial loss for the respondents. The matter was heard on appeal before Stern and Ball JJA and Price AJA.

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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