Lin v Zheng

Case [2023] NSWCA 174

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Lin v Zheng [2023] NSWCA 174
Hearing dates: 23 June 2023
Date of orders: 01 August 2023
Decision date: 01 August 2023
Before: Bell CJ at [1]
Payne JA at [2]
White JA at [97]
Decision:

(1)   Leave to amend the notice of appeal refused.

(2)   Leave to appeal granted.

(3)   Appeal dismissed.

(4)   Appellant to pay the respondents’ costs of the appeal.

Catchwords:

CONSUMER LAW — Misleading or deceptive conduct — Representations as to future matters

Legislation Cited:

Competition and Consumer Act 2010 (Cth) sch 2 – Australian Consumer Law ss 4, 18

Trade Practices Act 1974 (Cth) ss 51A, 52

Cases Cited:

Australian Competition and Consumer Commission v Dateline Imports Pty Ltd (2015) 161 FCR 513; [2015] FCAFC 114

Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54

Australian Competition and Consumer Commission v Woolworths Group Ltd (2020) 281 FCR 108; [2020] FCAFC 162

Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 271 CLR 151

Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60

Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25

Cummings v Lewis (1993) 41 FCR 559; [1993] FCA 190

Digi-Tech (Australia) Ltd v Brand [2004] NSWCA 58; (2004) 62 IPR 184

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217

Gould v Vaggelas (1984) 157 CLR 215; [1984] HCA 68

Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 357; (1999) 43 IPR 545

Henville v Walker (2001) 206 CLR 459; [2001] HCA 52

HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640; [2004] HCA 54

New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; [1982] HCA 44

Sykes v Reserve Bank of Australia (1998) 88 FCR 511; [1998] FCA 1405

Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55

Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12

Category:Principal judgment
Parties: Zhi Wei Lin (Appellant)
Jinbiao Zheng (First Respondent)
Xiaochu Luo (Second Respondent)
Yi Wang (Third Respondent)
Xiaofeng Qian (Fourth Respondent)
Moral Success Developments Ltd (Fifth Respondent)
Representation:

Counsel:
S Lawrance SC (Appellant)
D Cook SC; A Katsoulas (First, Second, Third, Fourth and Fifth Respondents)

Solicitors:
Luminous Legal (Appellant)
KWL Lawyers (First, Second, Third, Fourth and Fifth Respondents)
File Number(s): 2022/366496
Publication restriction: Nil
 Decision under review 
Court or tribunal:
Supreme Court of NSW
Jurisdiction:
Civil
Citation:

[2022] NSWSC 1387; [2022] NSWSC 1558

Date of Decision:
15 November 2022
Before:
Black J
File Number(s):
2020/207318

HEADNOTE

[This headnote is not to be read as part of the judgment]

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Details
AGLC
Lin v Zheng [2023] NSWCA 174
Case
[2023] NSWCA 174
Decision Date

CaseChat Overview and Summary

The appeal concerned alleged misleading or deceptive conduct in contravention of the Australian Consumer Law. The appellant, Ms. Lin, claimed that the respondents, Mr. and Ms. Zheng, made representations about future matters that were misleading. The matter came before the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the respondents' representations concerning future matters were misleading or deceptive, and if so, whether this conduct contravened section 18 of the Australian Consumer Law. A secondary issue related to the appellant's application to amend her notice of appeal.

The Court of Appeal considered the nature of representations as to future matters under the Australian Consumer Law, noting that such representations are deemed misleading if the person making them does not have reasonable grounds for making them. The Court found that the evidence did not establish that the respondents lacked reasonable grounds for their representations. Consequently, the Court concluded that there was no contravention of section 18.

The Court of Appeal refused leave to amend the notice of appeal but granted leave to appeal. The appeal was ultimately dismissed, and the appellant was ordered to pay the respondents’ costs of the appeal.

Orders

Orders of the court

(1) Leave to amend the notice of appeal refused.

(2) Leave to appeal granted.

(3) Appeal dismissed.

(4) Appellant to pay the respondents’ costs of the appeal.

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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