Zong v Wang

The appeal concerned a dispute between Mr Zong and Mr Wang regarding alleged misleading and deceptive conduct in trade or commerce. The primary judge had found in favour of Mr Wang, and Mr Zong appealed this decision to the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the conduct in question occurred "in trade or commerce" for the purposes of the Australian Consumer Law. It also had to consider whether the primary judge had erred by taking into account representations that were not specifically pleaded or proven, and how to measure damages for shares acquired as a result of misleading representations, specifically whether the loss should be assessed at the date of the transaction or the date of the hearing.

The Court held that conduct is "in trade or commerce" if it is commercial in character, and this does not require an extant commercial operation; negotiations can be commercial even if they occur in a social setting. Regarding the unpleaded representations, the Court found that other representations could be contextually relevant to understanding the meaning and effect of the pleaded representations. On the issue of damages, the Court determined that it was appropriate to use the date of the hearing for assessing the loss of value in shares, particularly where the deterioration in value was inherent to the investment and not caused by supervening events, or where the purchaser was effectively "locked in" to the business.

The appeal was dismissed with costs awarded against both appellants.