Century Legend Pty Ltd v Ripani [2022] FCAFC 191

Federal Court of Australia

Century Legend Pty Ltd v Ripani [2022] FCAFC 191 Appeal from: Ripani v Century Legend Pty Ltd [2022] FCA 242

File number(s): VID 148 of 2022

Judgment of: MARKOVIC, MCELWAINE AND MCEVOY JJ

Date of judgment: 30 November 2022

Catchwords: CONSUMER LAW - misleading and deceptive conduct - contract of sale for apartment sold "off-the-plan" - where primary judge found render contained in marketing materials misleading and deceptive - whether the primary judge erred in rejecting the evidence of a witness - whether the primary judge erred in finding the exclusion clauses in the contract were ineffective in negating the misleading or deceptive conduct of the appellant - whether the primary judge erred in concluding the respondents were entitled to statutory rescission – appeal allowed in part - limited new trial ordered pursuant to ss 28(1)(f) and 30 of the Federal Court of Australia Act 1976 (Cth) EVIDENCE – application for leave to adduce further evidence upon hearing of the appeal - exercise of discretion pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) - evidence could have been obtained for the purposes of the trial - no satisfactory explanation offered by the appellant as to failure to obtain evidence prior to the trial - application refused

Legislation: Competition and Consumer Act 2010 (Cth), Sch 2 (Australian Consumer Law) ss 18, 236, 237, 243 Federal Court of Australia Act 1976 (Cth) ss 24, 27, 28(1)(f), 30, 37M, 37N

Cases cited: Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301; [2018] FCAFC 93 Australian Steel and Mining Corporation Pty Ltd v Corben [1974] 2 NSWLR 202 Awad v Twin Creeks Properties Pty Ltd [2012] NSWCA 200 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 Community and Public Sector Union v Telstra Corporation Ltd (2001) 112 FCR 324; [2001] FCA 564 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Devries v Australian National Railways Commission (1993) 177 CLR 472 Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 149 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Harvard Nominees Pty Ltd v Tiller (2020) 282 FCR 530; [2020] FCAFC 229 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236; [2007] FCAFC 134 Prouten v Chapman [2021] NSWCA 207 Queensland v Masson (2020) 94 ALJR 785; [2020] HCA 28 Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Spencer Bower & Handley, Actionable Misrepresentation (5th ed, LexisNexis, 2014)