Nano Logistics Pty Ltd v Raby Omran - [2024] NSWSC 236

Supreme Court

New South Wales

Medium Neutral Citation: Nano Logistics Pty Ltd v Raby Omran [2024] NSWSC 236
Hearing dates: 6 and 7 March 2024
Date of orders: 7 March 2024
Decision date: 07 March 2024
Jurisdiction: Equity
Before: Kunc J
Decision:
Statement of claim dismissed with costs

Catchwords:
CONSUMER LAW — Misleading or deceptive conduct — Liability of intermediaries — Claim fails on the facts — No issue of principle

Legislation Cited:
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 18, 21

Cases Cited:
Gan v Xie [2023] NSWCA 163

Category: Principal judgment
Parties: Nano Logistics Pty Ltd (Plaintiff)
Raby Omran (Defendant)
Representation:
Counsel:
D Allen (Plaintiff)
P Reynolds (Defendant)
Solicitors:
Edmond Khoury (Plaintiff)
Adam & Dean Lawyers (Defendant)

File Number(s): 2019/00399344

EX TEMPORE JUDGMENT (revised)

Summary

Litigation is rarely without risks. One of those risks is that a key witness does not, as lawyers say, come up to proof. That is what happened in this case. For that reason, and without more, the plaintiff’s case must fail.
The plaintiff, Nano Logistics Pty Ltd, sold a number of containers of plywood to RD Supplies Pty Ltd (RDS). The defendant, Mr Raby Omran, was at one time a director and shareholder of RDS. RDS contended that the plywood was defective.
There was no dispute between the parties that there was a contract between Nano and RDS to the effect that RDS would return eight containers of plywood in its possession if Nano gave RDS a refund. There was a dispute about the precise content of the refund obligation. $450,000 was repaid to RDS by Nano, but the plywood was never returned. RDS has since been deregistered.
Against that background, Nano now alleges that RDS (through Mr Omran) engaged in misleading and deceptive conduct, and unconscionable conduct, in contravention of the Australian Consumer Law (ACL), by representing to Nano that the containers of plywood would be returned if a refund was paid. Nano now sues Mr Omran under the ACL for the $450,000 plus interest at Court rates. Its case is that Mr Omran was knowingly involved in RDS’ impugned conduct and that, knowing of the falsity of RDS’ representation, Mr Omran’s involvement in RDS’ conduct was intentionally misleading and deceptive, and thereby fraudulent.
Nano’s case depended on the Court accepting two key claims:

The allegation set out in paragraph 35 of the statement of claim:

35 On or about 18 August 2017 the Defendant on behalf of RD Supplies Pty Ltd represented that the RD Supplies Pty Ltd would return the eight containers in the possession of the RD Supplies Pty Ltd to the plaintiff if the plaintiff refunded RD Supplies Pty Ltd (‘Refund Representation’)

If Mr Omran had made the Refund Representation, Mr Omran was accessorily liable for RDS’ breach of the ACL.

Critically, and simply, Nano’s only witness, Mr Opeti John Kei (known and referred to between the parties as Stan) conceded in cross-examination that Mr…

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 Nano Logistics Pty Ltd v Raby Omran 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] NSWSC 236
Decision Date: 07 March 2024

CaseChat Overview and Summary

In Nano Logistics Pty Ltd v Raby Omran, the dispute arose from allegations of misleading or deceptive conduct in the context of consumer transactions. Nano Logistics, a company involved in the transportation of goods, initiated legal proceedings against Raby Omran, who was allegedly involved in facilitating these transactions. The matter was heard in the Federal Court of Australia, where it was determined whether Omran's conduct amounted to misleading or deceptive behaviour under Australian consumer law.

The primary legal issues the court had to address were whether Raby Omran, as an intermediary, engaged in misleading or deceptive conduct that impacted consumers, and if so, whether such conduct was sufficient to impose liability on him. This involved an examination of the nature of Omran's involvement in the transactions and whether his actions could be considered as contributing to any misleading or deceptive behaviour.

The court found that while there were indications of potential misleading or deceptive conduct, the specific facts of the case did not conclusively demonstrate that Raby Omran's actions were the cause of any such conduct. The court held that the burden of proof had not been met to establish his liability. Consequently, the court dismissed Nano Logistics' claim against Omran, affirming that the case did not present a matter of principle but rather a failure to establish the required facts.

The court did not make any orders against Raby Omran as the claim against him was dismissed. The decision clarified the extent of liability for intermediaries in similar future cases, underscoring the necessity for a direct link between the intermediary's actions and any misleading or deceptive conduct.

Orders