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
Lim v Comcare (2019) 165 ALD 217; [2019] FCAFC 104
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:
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)…
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- Case
- [2023] FCA 812
- Decision Date
CaseChat Overview and Summary
The Full Court determined that the new trial should be confined to the question of whether the applicants continued to rely on the misleading or deceptive conduct by the respondent within a specified period. This decision was made after the Full Court held that the primary judge had erred in rejecting the evidence of a witness. The court also needed to determine whether the new trial's ambit extended to the issue of whether the representations were expunged by the date the contract of sale became binding. Ultimately, the Full Court limited the scope of the new trial to two specific issues.
The court held that the new trial ordered by the Full Court should be limited to determining whether the applicants continued to rely on the respondent's misleading and deceptive conduct within the specified period and, if resolved in their favour, the relief that should be granted. The Full Court also clarified that the scope of the new trial did not extend to the issue of whether the representations were expunged by the date the contract of sale became binding. The final orders were that the new trial would be limited to the two specified issues and entry of orders would be dealt with in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
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.
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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