Xue v Karimbla Properties (No.45) Pty Ltd - [2023] NSWSC 552

Supreme Court

New South Wales

Medium Neutral Citation: Xue v Karimbla Properties (No.45) Pty Ltd [2023] NSWSC 552
Hearing dates: 12, 13 and 14 September 2022
Date of orders: 25 May 2023
Decision date: 25 May 2023
Jurisdiction: Equity
Before: Henry J
Decision:
See [161]

Catchwords:
CONSUMER LAW — misleading or deceptive conduct pursuant to s 18 of the Australian Consumer Law or s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) — where contract to purchase off-the-plan apartment was executed and exchanged, deposit paid but contract not completed — where plaintiffs allege they were misled as to availability of vendor finance at market interest rate prior to settlement by sales agent — whether representations made or conveyed — representations not made out on evidence — plaintiffs’ claim fails

Legislation Cited:
Australian Securities and Investments Commission Act 2001 (NSW)
Civil Procedure Act 2005 (NSW)
Competition and Consumer Act 2010 (Cth)
Conveyancing Act 1919 (NSW)
Uniform Civil Procedure Rules NSW 2005

Cases Cited:
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
NationalAustralia Bank Limited vDionysas Trustee for the Angel Family Trust [2016] NSWCA 242
O’Connor v O’Connor [2021] NSWSC 1056
Watson v Foxman (1995) 49 NSWLR 315

Category: Principal judgment
Parties: Cong Wu Xue (First Plaintiff)
Feng Ying Liu (Second Plaintiff)
Karimbla Properties (No.45) Pty Ltd (First Defendant)
Meriton Property Services Pty Limited (Second Defendant)
Representation:
Counsel:
H Zhao (First and Second Plaintiffs)
M Pesman SC (First and Second Defendants)
Solicitors:
Juris Cor Legal (First and Second Plaintiffs)
Group General Counsel – Meriton Group (First and Second Defendants)

File Number(s): 2020/00276251
Publication restriction: Nil

JUDGMENT

In August 2017, the plaintiffs, Cong Wu Xue and Feng Ying Liu, entered into a contract to purchase (Contract) an off-the-plan apartment (Lot 202) in a new development, known as “Spectrum”, located at Church Avenue, Mascot (Development).
The first defendant, Karimbla Properties (No.45) Pty Ltd (Karimbla), was the vendor of Lot 202. The second defendant, Meriton Property Services Pty Ltd (MPS) was the sales agent for the Development. Karimbla and MPS are members of the Meriton Group of companies and are referred to collectively as Meriton in these reasons.
The purchase price of Lot 202 was $873,000 and the plaintiffs paid a deposit of $87,300 on exchange. The Development was completed in 2019 and, on 9 May 2019, MPS notified the plaintiffs that settlement would soon take place.
The Contract was not completed. The plaintiffs did not comply with a notice to complete dated 3 July 2019 which required completion by 19 July 2019. On 4 November 2019, Meriton notified the plaintiffs of its termination of the Contract.
The plaintiffs claim that they did not complete the Contract because, in August 2017, they were misled by Meriton that vendor finance would be made available to them prior to settlement at the market interest rate, which they…

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.

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Details

Case: [2023] NSWSC 552
Decision Date: 25 May 2023

CaseChat Overview and Summary

The plaintiffs, Xue, initiated legal proceedings against Karimbla Properties (No.45) Pty Ltd, asserting that they were misled by the sales agent regarding the availability of vendor finance at a market interest rate prior to the settlement of their contract to purchase an off-the-plan apartment. The contract had been executed and exchanged, and a deposit had been paid, but the contract had not been completed. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the plaintiffs had been misled by the sales agent in relation to the availability of vendor finance at a market interest rate. The court examined the evidence presented by the plaintiffs to determine if the alleged misleading or deceptive conduct occurred. The plaintiffs argued that the sales agent had represented that vendor finance would be available at a market interest rate prior to settlement, but this was not the case.

The court concluded that the plaintiffs had not provided sufficient evidence to establish that any misleading or deceptive conduct had occurred. The court found that there was no evidence to support the plaintiffs' claim that the sales agent made or conveyed any representations regarding the availability of vendor finance at a market interest rate prior to settlement. As a result, the plaintiffs' claim under section 18 of the Australian Consumer Law or section 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) was dismissed.

The Federal Circuit and Family Court of Australia ordered that the plaintiffs' claim be dismissed with costs. The court determined that the plaintiffs had failed to prove their case, and as a result, the defendants were not liable for any misleading or deceptive conduct.

Orders