District Court
New South Wales
Medium Neutral Citation: Zhang v Peng [2023] NSWDC 448 Hearing dates: 3-6 April, 14, 16 June and 28 July 2023 Date of orders: 27 October 2023 Decision date: 27 October 2023 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the plaintiff for $96,716.
(2) Costs and interest reserved, with liberty to apply.
(3) Exhibits retained until further order.
Catchwords: CONSUMER LAW – applications pursuant to ss 12DA and 12DB of the Australian Securities and Investments Commission Act 2001 (Cth) or, in the alternative, s 18 of the Australian Consumer Law, and for negligent misrepresentation – defendant asserted to have misled plaintiff by representations about the desirability of investing in a complex and unregulated investment scheme, both orally and subsequently in WeChat posts - whether representations made – whether made in trade or commerce – whether investment scheme a financial product – whether representations conduct in relation to financial services – whether misleading or deceptive, or false or misleading – causation issues - whether representations negligent – whether duty of care owed – whether duty of care breached – quantum
Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), ss 12BB, 12DA, 12DB, 12GF
Competition and Consumer Act 2010 (Cth), s 131A; Sch 2 - Australian Consumer Law, ss 4, 18, 235, 236
Civil Liability Act 2002 (NSW), s 5D
Cases Cited: Anchorage Capital Master Offshore Ltd v Sparkes [2023] NSWCA 88
Briess v Woolley [1954] AC 333
Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592; [2004] HCA 60
Commercial Banking Co of Sydney Ltd v R H Brown & Co (1972) 126 CLR 337
Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435; [2013] HCA 1
Johnson v Mackinnon (No 2) [2022] NSWCA 22
Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156
Lloyd v Grace, Smith & Co [1912] AC 716
Mackinnon as plaintiff representative of 153 plaintiff group members v Partnership of Larter, Jones, Miraleste Pty Ltd t/as USG Partner and Johnson, t/as “STC Sports Trading Club” (No 8) [2019] NSWSC 1658
Perpetual Trustee Company Ltd v Milanex Pty Ltd (in liq) [2011] NSWCA 367
Samsung Electronics v LG Electronics (2015) 113 IPR 11
Tepko Pty Ltd v Waterboard (2001) 206 CLR 1; [2001] HCA 19
Tomasetti v Brailey [2011] NSWSC 1446
Tomasetti v Brailey [2012] NSWCA 399
Tomasetti v Brailey [2013] NSWSC 1282
Texts Cited: Nil
Category: Principal judgment Parties: Yajun Zhang (plaintiff)
Yan Peng (defendant)Representation: Counsel:
Solicitors:
Mr B M Zipser (plaintiff)
Mr S Bell (defendant)
Zhang Shijing Lawyers (plaintiff)
Lloyd Truman Sadiq Solicitors (defendant)
File Number(s): 2020/00007274 Publication restriction: Nil
Judgment
The plaintiff’s claim and the pleadings
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The plaintiff, by statement of claim filed on 9 January 2020 (as amended, in the second further amended statement of…
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- AGLC
- Zhang v Peng [2023] NSWDC 448
- Case
- [2023] NSWDC 448
- Decision Date
CaseChat Overview and Summary
The court found that the representations were indeed made and were in the context of trade or commerce. It was determined that the investment scheme qualified as a financial product and that the conduct related to financial services. The representations were found to be misleading or deceptive and constituted conduct in relation to financial services. The court further held that the defendant owed a duty of care, which was breached, and that the plaintiff suffered loss as a result of the defendant's negligence.
The court ruled in favour of the plaintiff, awarding damages of $96,716. The court reserved the right to order costs and interest and retained the exhibits pending further order. The plaintiff was thus successful in his claim for misleading or deceptive conduct and negligent misrepresentation.
Orders
Orders of the court
(1) Judgment for the plaintiff for $96,716.
(2) Costs and interest reserved, with liberty to apply.
(3) Exhibits retained until further order.
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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