Commissioner for Fair Trading v Bowes Street Developments Pty Ltd - [2021] ACTSC 282

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Commissioner for Fair Trading v Bowes Street Developments Pty Ltd
Citation:	[2021] ACTSC 282
Hearing Date:	20 July 2021
Submissions last received:	30 July 2021
DecisionDate:	29 October 2021
Before:	McWilliam AJ
Decision:	See [130]
Catchwords:	TRADE PRACTICES – MISLEADING AND DECEPTIVE CONDUCT – Application to join a defendant and to further amend pleadings – alleged breaches of the Australian Consumer Law made in the course of advertising an apartment development in Woden – where defendants are part of a complex corporate structure – where proceedings not significantly advanced and no date set for trial – where joinder of defendant necessary to determine all issues in dispute – amendments have utility and no significant prejudice demonstrated – leave granted
Legislation Cited:	Competition and Consumer Act 2010 (Cth) s 139B, sch 2 (ss 4, 18, 23, 24, 29, 89, 89A, 239, 224, 240) Court Procedures Rules 2006 (ACT) rr 210, 220, 501, 502, 503, 507, 513 Court Procedures Act 2004 (ACT) s 5A Fair Trading (Australian Consumer Law) Act 1992 (ACT) ss 7, 52 Federal Court Rules 1979 (Cth) O 6 r 8 (now repealed)
Cases Cited:	ACCC v Dataline Imports Pty Ltd [2015] FCAFC 114 Ackers v Austcorp International Pld [2009] FCA 432 AON Risk Services Australia v Australian National University [2009] HCA 27; 239 CLR 175 Australian Competition and Consumer Commission v Geowash Pty Ltd (No 4) [2020] FCA 23; 376 ALR 701 Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 2) [2020] FCA 863 Awad v Twin Creek Properties Pty Ltd [2011] NSWSC 923 Awad v Twin Creek Properties Pty Ltd [2012] NSWCA 200 Canberra Hire Pty Ltd v Koppers Wood Products Pty Ltd [2008] ACTSC 92 Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261 Cummings v Lewis (1993) 41 FCR 559 Kaye v Woods [2014] ACTSC 25 Kaye v Woods [2014] ACTSC 84 Mannall v Howard [2019] ACTSC 112 News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 Stewart v North Metropolitan Tramways Co (1886) 16 QBD 556 Swishette Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 45; 249 FCR 483 Sykes v Reserve Bank of Australia [1998] FCA 1405; 88 FCR 511 The Owners – Units Plan 3550 v BCA Certifiers Australia Pty Ltd [2021] ACTSC 3 Tinworth v WV Management Pty Ltd [2009] VSC 552
Parties:	Commissioner for Fair Trading ( Plaintiff) Bowes Street Developments Pty Ltd (ACN 612 564 833) (First Defendant) Geocon Bowes Street JV Pty Limited (ACN 623 471 287) (Second Defendant) Zapari Property Bowes Street Pty Limited (ACN 612 564 879) (Third Defendant) GZ Developments Pty Limited (ACN 623 532 810) (Fourth Defendant)
Representation:	Counsel D Tynan ( Plaintiff) Dr R Higgins SC with R J Pietriche ( Defendants)
Solicitors ACT Government Solicitor ( Plaintiff) Meyer Vandenberg ( Defendants)
File Number:	SC 415 of 2019

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.

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Details

Case: [2021] ACTSC 282
Decision Date

CaseChat Overview and Summary

The Commissioner for Fair Trading (Commissioner) has brought regulatory action against a number of corporate entities associated with two Canberra-based property developers. The conduct alleged concerns a series of false, misleading or deceptive representations made in the course of advertising an apartment development in Woden known as “Grand Central Towers”. The Commissioner has brought proceedings against Bowes Street Developments Pty Ltd (BSD), Geocon Bowes Street JV Pty Limited (GB JV), Zapari Property Bowes Street Pty Limited (Zapari) and GZ Developments Pty Limited (GZ Developments). The Commissioner seeks to amend the pleadings by joining a fifth defendant, GRE Sales Pty Ltd (GRE Sales), and by alleging further contraventions of the Australian Consumer Law (ACL) by the defendants. The defendants oppose the amendments. The Commissioner requires leave of the Court to amend the pleadings, under r 507 of the Court Procedures Rules 2006 (ACT). The Court's general discretion to permit amendments to pleadings is contained in r 502(1) of the Rules. The exercise of that discretion is informed by the case management objectives in s 5A of the Court Procedures Act 2004 (ACT). Relevant factors for consideration include the nature of the amendments, any delay in seeking to amend the claim, the reason for the delay, and any prejudice that might arise, along with efficient case management objectives and regard to court resources. The Court is satisfied that leave should be granted to the Commissioner to join GRE Sales as a fifth defendant. The amendment is necessary to enable the Court to decide all issues in dispute. The Commissioner's application to include advertising on real estate websites as part of the representations pleaded is also permitted. There is a genuine question to be tried as to whether the representations made on the websites constitute misleading or deceptive conduct. The Commissioner's application to include additional contraventions of s 29 of the ACL in respect of the Rental Yield Representations is also permitted. The Commissioner's failure to plead s 29 from the outset is not determinative of the application to amend. The Court is satisfied that leave should be granted to the Commissioner to include a claim for s 239 relief. The Commissioner has established a reasonably arguable case for such relief. Leave is granted to the plaintiff to join GRE Sales Pty Ltd (ACN 167 184 661) as the Fifth Defendant to these proceedings. Leave is granted to the plaintiff to file and serve an Amended Originating Claim and Further Amended Statement of Claim substantially in the form of the documents annexed to the affidavit of Sarah Kate Arthur affirmed 27 April 2021 and marked SKA-1 and SKA-2 respectively. The plaintiff is to pay the costs of the application and any costs thrown away by the amendments.

Orders