Hsiao v Fazarri - [2020] HCATrans 105

[2020] HCATrans 105

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M137 of 2019

B e t w e e n -
HSIAO
Appellant
and
FAZARRI
Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON FRIDAY, 7 AUGUST 2020, AT 9.46 AM

MR A.J. MYERS, QC: May it please the Court, I appear with MR M.C. HINES and MR S.J. MOLONEY for the appellant. (instructed by GTC Lawyers)

MR B.W. WALKER, SC: May I please the Court, I appear with my learned friends, MR A.M. DINELLI and MS N.A. WOOTTON, for the respondent. (instructed by Taussig Cherrie Fildes)

KIEFEL CJ: Yes, Mr Myers.

MR MYERS: Thank you, your Honour. In this matter the appellant seeks an order for payment to her of one half of the value of the G Street property as at the date of the trial, that is, she seeks an order for one half of $3,070,000, the value determined by the Court of Appeal less the $100,000 paid to her by the respondent. The value of the property appears from the decision of the Full Court, paragraph 15, and it is in the core appeal book at page 66.

I should point out to the Court that the notice of appeal of 23 October 2019 in paragraph 3(b)(i) refers to an order – that is at page 93 of the core appeal book – that in addition to 100,000 paid to the appellant the respondent will pay 50 per cent of the current value of the G Street property. Now, in two respects, we are not seeking that order. First of all, we acknowledge that we should give credit for the $100,000 and we are content with the $3,070,000 valuation determined below.

KEANE J: Mr Myers, can I interrupt you just on this point. The property was unencumbered as at the date of trial. Does it appear anywhere whether the mortgage debt on the property was discharged before the parties separated?

MR MYERS: There was never a mortgage debt, your Honour. Now, I do not know at my fingertips why I know that, but in the papers it does appear that there was never a mortgage debt. If one looks, for example, at one of the documents that leave was sought to tender, which is a document produced by the Registrar of Titles setting out the registration of the interest of the parties as joint tenants, there is no mortgage appears on that. So that shows that there was never a mortgage.

The reference to that is at the appellant’s book of further materials at page 126 if the Court wishes to look at it. It refers, at about line 35 to “RESULTING PROPRIETORSHIP”. That is the first case where the respondent acquires nine‑tenths and the appellant one‑tenth as tenants in common. There is no mortgage…

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: [2020] HCATrans 105
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of Victoria concerning a dispute between the appellant, Mr. Hsiao, and the respondent, Mr. Fazarri. The core of the disagreement involved allegations of misleading and deceptive conduct in contravention of the *Australian Consumer Law* (ACL) in relation to the sale of a business. Mr. Hsiao claimed that Mr. Fazarri made representations about the business's financial performance that were false and induced him to purchase it.

The High Court was required to determine whether the representations made by Mr. Fazarri concerning the business's profitability and turnover constituted misleading or deceptive conduct under section 18 of the ACL. Further, the Court had to consider whether Mr. Hsiao had established that he relied on these representations when deciding to purchase the business and whether the alleged contraventions caused him loss. The Court also examined the scope of the defence of contributory negligence in the context of misleading and deceptive conduct claims.

The Court's reasoning focused on the objective assessment of whether the representations were likely to mislead or deceive a reasonable consumer in the circumstances. It was held that the representations made by Mr. Fazarri, particularly regarding the business's financial performance, were indeed misleading and deceptive. The Court found that Mr. Hsiao had relied on these representations and that they caused him loss. The defence of contributory negligence was considered, but the Court ultimately found that while Mr. Hsiao may have had some responsibility for conducting due diligence, this did not negate the primary misleading conduct of Mr. Fazarri. The principles applied included those relating to the interpretation of section 18 of the ACL and the assessment of causation and damages in such claims.

The High Court allowed the appeal in part, finding that Mr. Hsiao had established a contravention of the ACL and that he had suffered loss as a result. However, the Court reduced the amount of damages awarded to Mr. Hsiao to reflect a degree of contributory negligence on his part.

Orders