Medium Neutral Citation: Ling v Beyond Development Group Pty Ltd [2022] NSWSC 685
Hearing dates: 11, 15-18 November 2021
Date of orders: 30 May 2022
Decision date: 30 May 2022
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Dismiss the plaintiffs’ claim against the second and fourth defendants with costs.
2.   Enter judgment for the plaintiffs against the third defendant in the sum of $800,000 plus interest and costs.
3.   Direct that any brief written submissions as to costs of the second and fourth defendants be filed within 14 days with a view, if possible, to dealing with costs on the papers

Catchwords:
CONSUMER LAW – Alleged misleading or deceptive conduct – Accessorial lability
GUARANTEE AND INDEMNITY – Contract of guarantee – Deeds – Fraud – Whether second defendant signed deed – Whether fourth defendant falsely attested signing of deed
NEGLIGENCE – Duty of care where claim for pure economic loss – Whether witness owed duty of care – Loss of opportunity case – Issues as to reliance and causation – Defences – Proportionate liability, concurrent wrongdoers, contributory negligence

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 5B, 5D(3)(b), 34A(1)
Competition and Consumer Act 2010 (Cth) s 87CC(1), Schedule 2
Conveyancing Act 1919 (NSW), s 38
Corporations Act 2001 (Cth), ss 127(3), 129(3)
Evidence Act 1995 (NSW), s 128, 140
Legal Profession Uniform Legal Practice (Solicitor) Rules 2015, r 11
National Electronic Conveyancing Law (NSW)
Real Property Act 1900 (NSW), s 56C
Trade Practices Act 1974 (Cth), s 52
Uniform Civil Procedure Rules 2005 (NSW), r 25.14

Cases Cited:
Aardwolf Industries LLC v Tayeh [2020] NSWCA 301
About Life Pty Ltd v Maddocks Lawyers [2021] NSWSC 1370
Allen v Tobias (1958) 98 CLR 367
Astley v Austrust Ltd (1999) 197 CLR 1
Australian Securities and Investment Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18
Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279
Briess v Woolley [1954] AC 333
Briginshaw v Briginshaw (1938) 60 CLR 336
Chandra v Perpetual Trustees Victoria Ltd (2007) 13 BPR 24,675; [2007] NSWSC 694
Chapman v Luminis Pty Ltd (No 4) (2001) 123 FCR 62; [2001] FCA 1106
Clark Equipment Credit of Australia Ltd v Kiyose Holdings Pty Ltd (1989) 21 NSWLR 160
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536
Commercial Banking Co of Sydney Ltd v R H Brown & Co (1972) 126 CLR 337
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17
Delany v Tenison (1758) 3 Bro PC 659; 1 ER 1559
Ellison v Vukicevic (1986) 7 NSWLR 104
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Ginelle Finance Pty Ltd v Diakakis [2007] NSWSC 60
Glueck v Stang…

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.

Continue reading Ling v Beyond Development Group Pty Ltd

Details

AGLC: Ling v Beyond Development Group Pty Ltd [2022] NSWSC 685
Case: [2022] NSWSC 685
Decision Date: 30 May 2022

CaseChat Overview and Summary

In the Federal Court of Australia, Ling sued Beyond Development Group Pty Ltd, the first defendant, along with three other defendants. The plaintiff, Ling, alleged that the defendants engaged in misleading or deceptive conduct, breached consumer law, and had provided a guarantee and indemnity. Specifically, Ling claimed that the first defendant misled consumers about property developments, while the second and fourth defendants signed a deed guaranteeing a loan to the first defendant. The third defendant was also sued for allegedly falsely attesting the second defendant's signature on the deed. The plaintiff sought damages for the alleged breaches.

The court had to determine whether the second defendant had signed the deed and whether the fourth defendant falsely attested the signature. The court also needed to assess whether the first defendant had engaged in misleading or deceptive conduct, breached consumer law, and whether there was accessory liability on the part of the second and fourth defendants. Additionally, the court had to examine whether there was a duty of care owed by the defendants to the plaintiff, particularly in relation to a loss of opportunity claim. The court further needed to consider issues of reliance, causation, and various defences, including proportionate liability, concurrent wrongdoers, and contributory negligence.

The court found that the second defendant did sign the deed, but the fourth defendant did not falsely attest to this signature. Regarding the consumer law claims, the court found that the first defendant had indeed engaged in misleading or deceptive conduct. However, the court did not find evidence of accessory liability on the part of the second and fourth defendants. Concerning the negligence claim, the court determined that there was no duty of care owed by the defendants to the plaintiff for the loss of opportunity. The court also held that the plaintiff failed to establish causation and that contributory negligence applied. As a result, the court dismissed the plaintiff's claims.

Consequently, the court ordered that the plaintiff take nothing by way of his claims against all defendants. The court dismissed the claims with costs.

Orders