Ning Shen v ASF Properties Pty Limited

District Court

New South Wales

Medium Neutral Citation:	Ning Shen v ASF Properties Pty Limited & Ors [2017] NSWDC 11
Hearing dates:	19 July 2016 – 22 July 2016, 14 November 2016 -
Decision date:	09 February 2017
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict for the first, second and third defendants. For Orders see [130]
Catchwords:	Misleading and deceptive conduct; action in deceit
Legislation Cited:	Civil Liability Act 2002 (NSW) s 34 Evidence Act 1995 (NSW) s 38 Limitation Act 1969 (NSW) ss 14, 55 Trade Practices Act 1974 (Cth) ss 52, 82
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336 Carrier v Georges [2013] NSWSC 401 Gould v Vaggelas (1985) 157 CLR 215 Jones v Dunkel (1959) 101 CLR 298 Manly Council v Byrne & Anor [2004] NSWCA 123 Potts v Miller (1940) 64 CLR 282 Watson v Foxman & Ors (1995) 49 NSWLR 315
Category:	Principal judgment
Parties:	Ning Shen (Plaintiff) ASF Properties Pty Limited (1st Defendant) Quan Fang (aka David Fang) (2nd Defendant) Min Yang (3rd Defendant) Quan Li Liu (4th Defendant) (No appearance)
Representation:	Counsel: T J Morahan (Plaintiff) D Cook SC (1st, 2nd and 3rd Defendants)   Solicitors: Chen Shan Lawyers McLachlan Thorpe Partners
File Number(s):	14/289694
Publication restriction:	Nil

Judgment

Introduction

1. By an Amended Statement of Claim filed on 26 May 2015, the plaintiff sues the defendants on two causes of action. The first is based on s 52 of the Trade Practices Act 1974 (Cth), (“the TPA”) and alleges that the first, second, third and fourth defendants made certain representations to the plaintiff that were misleading or deceptive, or likely to mislead or deceive him, in respect of the purchase of a property at Breakfast Point.

2. The second cause of action relied on by the plaintiff is a common law action of deceit, relying on the same representations.

3. The plaintiff pleads that he relied on the representations as pleaded, and further, that by virtue of their fraudulent conduct, the sum of $350,000.00, which the plaintiff believed was to be paid to an existing purchaser of the property at arms-length from defendants, as part of the purchase price of $3,880,000.00, was in fact paid to the second or third defendants, or alternatively to the fourth defendant, Mr Liu. Mr Liu has not been served with the pleadings, and took no part in the hearing. The first, second and third defendants were represented by the same legal representatives and are referred to herein as “the defendants”.

4. The plaintiff’s claim is for the sum of $350,000 plus interest to 18 November 2016 (a total of $362,434.60), and continuing at $55.14 per day.

Background to the dispute

5. The plaintiff, a Chinese citizen and businessman, arrived in Australia in April 2007, with the intention of buying property in Melbourne. After visiting Melbourne, he arrived in Sydney where he was met at the airport by the fourth defendant, Quan Liu. The plaintiff alleges that Mr Liu introduced him to the second and third defendants, Quan Fang (aka…