FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fu v Bondi Junction Prime Pty Ltd [2024] FedCFamC2G 513
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Details
- AGLC
- Fu v Bondi Junction Prime Pty Ltd [2024] FedCFamC2G 513
- Case
- [2024] FedCFamC2G 513
- Decision Date
CaseChat Overview and Summary
The case of Fu v Bondi Junction Prime Pty Ltd involves a dispute over the sale of an apartment 'off-the-plan' where the buyer, Mr Fu, alleges that he was misled by the sellers, Bondi Junction Prime Pty Ltd (BJP) and PCR, into believing that the apartment he purchased was on the top floor of the proposed building, which was later expanded to include an additional floor. Mr Fu contends that this misrepresentation led to him entering into the contract and that he is entitled to recover his deposit. BJP argues that the contract should be upheld, and they are entitled to the deposit due to Mr Fu's failure to complete the purchase. The central legal issues revolve around whether the contract was influenced by misleading or deceptive conduct and the rightful recipient of the deposit.
The court had to determine whether the representations made by BJP and PCR regarding the 'top floor' status of the apartment were misleading or deceptive under the Australian Consumer Law and whether these representations constituted future matters within the meaning of the legislation. The court also needed to examine whether BJP and PCR had reasonable grounds to make these representations. Additionally, the court had to decide to whom the deposited monies should be awarded—either to Mr Fu as a remedy for any misleading conduct or to BJP due to Mr Fu's failure to complete the sale.
Upon reviewing the evidence, the court found that the identical accounts of conversations provided by Mr Fu and Ms Mao were likely the result of copy and paste techniques rather than independent recollections. The court also noted the language barriers faced by Mr Fu and Ms Mao, which affected their ability to accurately recall and communicate the events. Given these factors, the court dismissed Mr Fu's application for recovery of the deposit, finding no basis to conclude that BJP and PCR's representations were misleading or deceptive. The court ruled that BJP was entitled to retain the deposit due to Mr Fu's failure to complete the purchase.
The court had to determine whether the representations made by BJP and PCR regarding the 'top floor' status of the apartment were misleading or deceptive under the Australian Consumer Law and whether these representations constituted future matters within the meaning of the legislation. The court also needed to examine whether BJP and PCR had reasonable grounds to make these representations. Additionally, the court had to decide to whom the deposited monies should be awarded—either to Mr Fu as a remedy for any misleading conduct or to BJP due to Mr Fu's failure to complete the sale.
Upon reviewing the evidence, the court found that the identical accounts of conversations provided by Mr Fu and Ms Mao were likely the result of copy and paste techniques rather than independent recollections. The court also noted the language barriers faced by Mr Fu and Ms Mao, which affected their ability to accurately recall and communicate the events. Given these factors, the court dismissed Mr Fu's application for recovery of the deposit, finding no basis to conclude that BJP and PCR's representations were misleading or deceptive. The court ruled that BJP was entitled to retain the deposit due to Mr Fu's failure to complete the purchase.
Orders
Orders of the court
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Background
Background to the litigation
In summary, the primary issues I must determine are:(a)Whether the contract for sale was procured by misleading or deceptive conduct on the part of BJP and PCR as alleged by Mr Fu; and(b)To whom the deposited monies should be paid – either to Mr Fu as a remedial consequence if the Court is satisfied that he was misled, or, as BJP claims, to BJP as a result of Mr Fu’s failure to complete the contract.B. SUMMARY OF RELEVANT FACTSThe 2015 sale On 3 June 2015 BJP hosted a “VIP launch event” (“the VIP launch”) for the proposed Diamond development apartment building containing, at that time, eleven floors. The launch event took place at a display presentation office owned by PCR. Attendance to the VIP launch was by invitation only. To secure a place in the event, attendees were required to provide a fully refundable registration fee of $10,000. Mr Fu attended the VIP launch event with his wife, Ms Angela Mao (“Ms Mao”) and two of his close friends. On the day of the VIP launch, representatives of BJP and PCR were present, including Mr Felix Milgrom (“Mr Milgrom”) who was one of two directors heading the development project and Mr Paul Mystriotis (“Mr Mystriotis”) who was a salesperson employed by PCR assisting BJP with the marketing of the project. At the VIP launch, Mr Fu entered into a contract with BJP for the purchase of apartment 1103 – one of three ‘off-the-plan’ apartments located on the eleventh floor of the proposed apartment building (“the apartment”). The agreed purchase price was $1,600,000. To secure the purchase, the Mr Fu paid BJP a deposit of $160,000, being 10 percent of the agreed purchase price (“the deposit”). These monies were placed in an interest-bearing account in accordance with the contract. At the launch event, Ms Mao also entered into a contract for sale with BJP. She purchased apartment 403. The events leading up to the parties entering into the contract for the sale of apartment 1103, and the circumstances surrounding this transaction, are disputed by the parties. These are significant matters to which I will return.The change in construction As at early 2018, construction of the Diamond development building was not yet complete. Mr Fu states in his affidavit that on about 16 May 2018 he inspected the construction of the apartment building “from the outside” and suspected the construction of an additional twelfth floor. That same evening, he instructed his solicitor at the time to send an email to BJP’s solicitor querying whether an additional level was being added to the development. By way of response email dated 17 May 2018 (“the May 2018 notification”), BJP’s solicitor confirmed with the applicant’s solicitor, the following:I confirm that pursuant to Section 96 application DA-101/2014/B, the vendor is constructing a 12th storey at Diamond Bondi Junction. Mr Fu stated that this was the first time he learnt of an additional level to the building. On 3 September 2018, Mr Fu emailed a BJP project manager (“the project manager”) who, on several occasions previously, had been corresponding with Mr Fu about the progress of the apartment’s construction. In this email Mr Fu expressed concern about the addition of a twelfth storey with reference to conversations he said took place between he and Mr Mystriotis and ‘the developer’ at the VIP launch.
Evidence
Evidence Before The Court
In his affidavit, Mr Fu says that English is his second language. He says that he can understand written English and has some difficulty with oral English. In her affidavit, Ms Mao says that she speaks English with moderate fluency, but her first language is Mandarin. She said that many of the conversations she has with her husband are in the Mandarin language. She said that she was with her husband at all times during the discussions on the day of the launch and where necessary, provided assistance by way of translation to him, “on the run”.‘Cut and paste’ evidence Exhibited by BJP and PCR was a document which identified evidence given by Mr Fu and Ms Mao as identical, including the paragraphs identified above. BJP and PCR submit that the Court would reject that evidence on the basis that the identical exchange attributed to Mr Mystriotis and Mr Fu by both Mr Fu and Ms Mao are a product of copy and paste techniques rather than a product of accurate recollection. BJP says that in the circumstances where:(a)Neither Mr Fu nor Ms Mao deposes to having any note of what was said by Mr Mystriotis;(b)Mr Fu acknowledges that his English is limited; and(c)The relevant conversation is said to have occurred between Mr Fu and Mr Mystriotis, in English (despite Mr Fu self-acknowledging limitation in that language and the extent of any translation which was interposed by Ms Fu being entirely unclear);it is in the highest degree unlikely that witnesses doing the best they could to set out their independent recollections, who came to make affidavits nearly five years after the conversation, would produce recollections which were in identical terms (including identical grammatical infelicities). I accept that submission. In cross examination neither Mr Fu nor Ms Mao could offer an explanation as to how the evidence of the crucial conversations came to be identical in their respective affidavits. Ms Mao said that she did her own affidavit on her own memory. In cross-examination Mr Fu gave evidence that he could understand some English in some paragraphs and not in others. His recollection of events that took place on 3 June 2015 some seven years previously was, not surprisingly, very poor. Mr Fu agreed in cross-examination that he saw a solicitor and received legal advice. He could not clearly recall the circumstances of the preparation and execution of his affidavit. He said that he prepared some of the conversations in Mandarin and had some of them translated by way of Google translate. In Seamez (Australia) Pty Ltd v McLaughlin [1999] NSWSC 9 at [36] and [40], Sperling J pointed out that a high degree of “similarity in content, detail, terminology and sequence” between the affidavits of three witnesses shows direct or indirect collaboration, and means one of two similar accounts cannot be a genuine recollection and may be worthless. In Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674, Palmer J expressed the view that such identity of language between the affidavits of separate witnesses devalues the evidence of the witnesses involved, even if it may not render it worthless (at [89]-[91]). In Celermajer Holdings Pty Ltd v Kopas (2011) 16 BPR 30,735 at [186], Ward J (as she then was) expressed the same view, pointing out it is unlikely that two deponents would have a precisely identical recollection, uninfluenced by the recollections of others, of shared experiences.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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