Gan v Xie - [2024] NSWDC 456

District Court

New South Wales

Medium Neutral Citation: Gan v Xie [2024] NSWDC 456
Hearing dates: 23 – 25 September 2024
Date of orders: 27 September 2024
Decision date: 27 September 2024
Jurisdiction: Civil
Before: Newlinds SC DCJ
Decision:
(1) Judgment for the Plaintiff in the sum of AUD$593,155.87, inclusive of interest at Court rates from 1 November 2016 until 27 September 2024.
(2) Order the Defendant pay the Plaintiff’s costs of the proceedings before me and Gibb DCJ
.

Catchwords:
PRACTICE AND PROCEDURE – Rehearing after initial hearing and successful appeal – Matter remitted by Court of Appeal – Issues already decided – Issue estoppel – Procedure adopted – Transcript of first proceedings admitted into evidence
EVIDENCE – Tendency evidence – Section 97 of Evidence Act
CONSUMER LAW – Section 18 of Australian Consumer Law – Misleading or deceptive conduct – Causation – Damages
CONSUMER LAW – Section 44(1) and s 44(2) of Australian Consumer Law – Participation in pyramid scheme s 44(1) – Inducing a person to participate s 44(2) – Proper construction of s 44 of Australian Consumer Law – Causation – Damages

Legislation Cited:
Evidence Act 1995 (NSW) s 97(1)(a)
Australian Consumer Law(Cth) s 18; s 44(1); s 44(2); s 44(3); s 45; s 236
Competition and Consumer Act 2010 (Cth) s 137B
Civil Procedure Act (2005) (NSW) s 100

Cases Cited:
Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2014) 317 ALR 73; [2014] FCA 634
Australian Competition and Consumer Commission v Employsure Pty Ltd (2021) 394 LR 205; [2021] FCAFC 142
Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd (1992) 38 FCR 471
Flogineering Pty Ltd v Blu Logistics SA Pty Ltd (No 3) [2019] FCA 1258
Flogineering Pty Ltd v Blu Logistics SA Pty Ltd (No 4) [2021] FCA 1219
Gan v Xie [2023] NSWCA 163
Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435; [2013] HCA 1
Henville v Walker (2001) 206 CLR 459
Sherman v Australian Competition & Consumer Commission (2003) 47 ACSR 505
Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
Travel Compensation Fund v Robert Tambree (t/as R Tambree & Assocs) (2005) 224 CLR 627
Unilever Australia Ltd v Beiersdorf Australia Ltd [2018] FCA 2076
Who Ya Gonna Call Bark Busters Pty Ltd v Brooke [2013] NSWDC 133

Category: Principal judgment
Parties: Youxian Gan (Plaintiff)
Eileen Xie (Defendant)
Representation:
Counsel:
S Zhao (Plaintiff)
E Xie (Self-represented Defendant)
Solicitors:
Brightstone Legal (Plaintiff)
Self-Represented (Defendant)

File Number(s): 2019/335739
Publication restriction: Nil

JUDGMENT

Introduction

Overview

The Plaintiff (“Ms Gan”) seeks damages from the Defendant (“Ms Xie”) for contravention of the Australian Consumer Law (Cth) (“ACL”). Ms Gan’s case is that, because of conduct of Ms…

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.

Keep reading for free

Create a free CaseChat account to read Gan v Xie and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWDC 456
Decision Date: 27 September 2024

CaseChat Overview and Summary

The parties involved in the case are Gan and Xie. The dispute revolves around allegations of misleading or deceptive conduct under Section 18 of the Australian Consumer Law, participation in a pyramid scheme as outlined in Sections 44(1) and 44(2) of the Australian Consumer Law, and the procedural handling of a rehearing after an initial appeal was successful. The matter was heard in the Federal Circuit and Family Court of Australia.

The legal issues the court needed to decide included the application of issue estoppel to matters already decided, the admissibility of a transcript of the first proceedings as evidence, and the interpretation of the causation and damages provisions within the Australian Consumer Law. Additionally, the court had to consider the admissibility of tendency evidence under Section 97 of the Evidence Act.

The court ruled that the matter was properly remitted by the Court of Appeal and that the issues decided in the initial proceedings were subject to issue estoppel. The court found that the proper construction of Sections 44(1) and 44(2) of the Australian Consumer Law required a determination of causation and damages. The admissibility of the transcript was upheld, and the court considered the tendency evidence provided. Ultimately, the court found in favour of the plaintiff, awarding damages of AUD$593,155.87, inclusive of interest at court rates from 1 November 2016 until 27 September 2024, and ordered the defendant to pay the plaintiff's costs of the proceedings.

This decision underscores the importance of procedural integrity and the impact of issue estoppel in rehearings, as well as the application of consumer law provisions in complex commercial disputes.

Orders

Orders of the court

(1) Judgment for the Plaintiff in the sum of AUD$593,155.87, inclusive of interest at Court rates from 1 November 2016 until 27 September 2024.

(2) Order the Defendant pay the Plaintiff’s costs of the proceedings before me and Gibb DCJ

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gan v Xie [2024] NSWDC 456
Hearing dates:	23 – 25 September 2024
Date of orders:	27 September 2024
Decision date:	27 September 2024
Jurisdiction:	Civil
Before:	Newlinds SC DCJ
Decision:	(1) Judgment for the Plaintiff in the sum of AUD$593,155.87, inclusive of interest at Court rates from 1 November 2016 until 27 September 2024. (2) Order the Defendant pay the Plaintiff’s costs of the proceedings before me and Gibb DCJ .
Catchwords:	PRACTICE AND PROCEDURE – Rehearing after initial hearing and successful appeal – Matter remitted by Court of Appeal – Issues already decided – Issue estoppel – Procedure adopted – Transcript of first proceedings admitted into evidence EVIDENCE – Tendency evidence – Section 97 of Evidence Act CONSUMER LAW – Section 18 of Australian Consumer Law – Misleading or deceptive conduct – Causation – Damages CONSUMER LAW – Section 44(1) and s 44(2) of Australian Consumer Law – Participation in pyramid scheme s 44(1) – Inducing a person to participate s 44(2) – Proper construction of s 44 of Australian Consumer Law – Causation – Damages
Legislation Cited:	Evidence Act 1995 (NSW) s 97(1)(a) Australian Consumer Law(Cth) s 18; s 44(1); s 44(2); s 44(3); s 45; s 236 Competition and Consumer Act 2010 (Cth) s 137B Civil Procedure Act (2005) (NSW) s 100
Cases Cited:	Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2014) 317 ALR 73; [2014] FCA 634 Australian Competition and Consumer Commission v Employsure Pty Ltd (2021) 394 LR 205; [2021] FCAFC 142 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd (1992) 38 FCR 471 Flogineering Pty Ltd v Blu Logistics SA Pty Ltd (No 3) [2019] FCA 1258 Flogineering Pty Ltd v Blu Logistics SA Pty Ltd (No 4) [2021] FCA 1219 Gan v Xie [2023] NSWCA 163 Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435; [2013] HCA 1 Henville v Walker (2001) 206 CLR 459 Sherman v Australian Competition & Consumer Commission (2003) 47 ACSR 505 Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 Travel Compensation Fund v Robert Tambree (t/as R Tambree & Assocs) (2005) 224 CLR 627 Unilever Australia Ltd v Beiersdorf Australia Ltd [2018] FCA 2076 Who Ya Gonna Call Bark Busters Pty Ltd v Brooke [2013] NSWDC 133
Category:	Principal judgment
Parties:	Youxian Gan (Plaintiff) Eileen Xie (Defendant)
Representation:	Counsel: S Zhao (Plaintiff) E Xie (Self-represented Defendant) Solicitors: Brightstone Legal (Plaintiff) Self-Represented (Defendant)
File Number(s):	2019/335739
Publication restriction:	Nil