Ripani v Century Legend Pty Ltd (No 3)

FEDERAL COURT OF AUSTRALIA

Ripani v Century Legend Pty Ltd (No 3) [2023] FCA 812  

File number(s):

VID 266 of 2020

Judgment of:

BUTTON J

Date of judgment:

18 July 2023

Catchwords:

PRACTICE AND PROCEDURE – scope of new trial – where trial judge held the respondent had engaged in misleading and deceptive conduct in relation to apartment sold off-the-plan – where trial judge found render contained in marketing materials conveyed misleading and deceptive representations – where Full Court held the primary judge had erred in rejecting evidence of a witness – where Full Court allowed appeal and ordered a new trial limited to the issue of whether the applicants continued to rely on the respondent’s misleading or deceptive conduct within a specified period, and if resolved in favour of the applicants, the relief that should be granted – whether the ambit of the new trial extended to the issue of whether the representations were expunged by the date the contract of sale became binding   

Cases cited:

Athens v Randwick City Council (2005) 64 NSWLR 58

Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592

Century Legend Pty Ltd v Ripani [2022] FCAFC 191

Hinds v Ross [2006] FCA 41

Lim v Comcare (2019) 165 ALD 217; [2019] FCAFC 104

Ripani v Century Legend Pty Ltd [2022] FCA 242

Division:

General Division

Registry:

Victoria

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Number of paragraphs:

31

Date of hearing:

17 July 2023

Counsel for the Applicants:

Mr S W Stuckey KC with Mr B Barr

Solicitor for the Applicants:

Zervos Lawyers

Counsel for the Respondent:

Ms G Costello KC with Dr K Weston-Scheuber

Solicitor for the Respondent:

Mills Oakley

ORDERS

VID 266 of 2020

BETWEEN:

WALTER RIPANI

First Applicant

NINA RIPANI

Second Applicant

AND:

CENTURY LEGEND PTY LTD (ACN 168 485 149)

Respondent

ORDER MADE BY:	BUTTON J
DATE OF ORDER:	18 JULY 2023

THE COURT ORDERS THAT:

1.The new trial ordered by the Full Court (by paragraph 4(a) of the orders made on 30 November 2022 in VID 148 of 2022) is limited to the following two issues:

1.Did the Ripanis continue to rely on the truth of the Representations (as defined in the agreed statement of facts) when the Ripanis:

(a) conveyed to Century Legend that they were satisfied with the floor plan; and

(b) provided the bank guarantee?

2. What orders should the Court make under s 237 of the Australian Consumer Law (ACL) for compensation and under s 243 of the ACL in the circumstances of this case?

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BUTTON J:

1. On 18 March 2022, the primary judge delivered his reasons following the trial of the proceeding brought by the applicants (the Ripanis): Ripani v Century Legend Pty Ltd [2022] FCA 242 (Ripani PJ). Put broadly, the proceeding alleged that the respondent vendor (Century Legend)…