Shearman v Dosen Holdings

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Shearman v Dosen Holdings

Citation: 

[2025] ACTSC 265

Hearing Date: 

7 March 2025

Decision Date: 

25 June 2025

Before:

Burns AJ

Decision: 

See [41]

Catchwords: 

APPEAL – CIVIL LAW – Contracts – Consumer law – Judgment – appeal from a decision of a Magistrate – claims for damages – misleading and deceptive conduct – common property of the complex affected by defects – appeal upheld

Legislation Cited: 

Competition and Consumer Act 2010 (Cth), sch 2, ss 4, 236
Fair Trading Act 1987 (NSW), ss 42, 68
Fair Trading (Australian Consumer Law) Act 1992 (ACT), s 7

Cases Cited: 

Argy v Blunts & Lane Cove Real Estate Pty Ltd [1990] FCA 51; 26 FCR 112
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304
Dong v Song (No 2) [2018] ACTSC 180
Henville v Walker [2001] HCA 52; 206 CLR 459
Shearman v Dosen Holdings [2024] ACTMC 4

Parties: 

Isobel Christina Shearman (First Appellant)

Yanni Liu (Second Appellant)

Cameron James McDougall (Third Appellant)

Lewis Meegan (Fourth Appellant)

Tanya Rosanne Doyle (Fifth Appellant)        

Caillan Shaw Colville (Sixth Appellant)

Rachel Jacinta Treglown (Seventh Appellant)

Dosen Holdings Pty Ltd (First Respondent)

Gjoko Dosen (Second Respondent)

Frane Dosen (Third Respondent)

Representation: 

Counsel

WDB Buckland ( Appellants)

Solicitors

O'Connor Harris & Co ( Appellants)

File Number:

SCA 22 of 2024

Decision Under Appeal: 

Court/Tribunal:           ACT Magistrates Court

Before:   Magistrate Temby

Date of Decision:       28 March 2024

Case Title:                  Shearman v Dosen Holdings

Citation: [2024] ACTMC 4

BURNS AJ:   

Introduction

1․This is an appeal from a decision of a Magistrate. In the proceedings before the Magistrate, seven plaintiffs (the appellants in the present proceedings) claimed damages against a number of defendants, including the respondents to the present appeal. The appellants are the owners of seven of the eight units in Units Plan 3917, being a residential development comprising eight units and associated common property located in Turner in the Australian Capital Territory (ACT).

2․The appellants purchased their units from the first respondent, Dosen Holdings Pty Ltd (Dosen). They purchased their units in the period between November 2019 and April 2020. The second and third respondents were directors of Dosen during that period. They were also the builders who were responsible for the construction of the units complex on behalf of Dosen. For convenience I will refer to the second and third respondents collectively as “the directors”.

3․After the appellants purchased their units, it became apparent that the common property of the complex was affected by defects. Initially, the directors made some minor, unsuccessful attempts to fix the defects. The appellants then retained experts and lawyers to pursue their rights culminating in the proceedings before the Magistrate.

4․In the proceedings before the Magistrate the appellants pursued claims for damages based upon (1) breach of contract and (2) misleading or deceptive conduct contrary to the Australian Consumer Law (ACL). The ACL is found in Sch 2 to the