Xuan v Xu [2022] FCA 508

Federal Court of Australia

Xuan v Xu [2022] FCA 508 File number(s): NSD 1174 of 2019

Judgment of: HALLEY J

Date of judgment: 6 May 2022

Catchwords: CONSUMER LAW – application pursuant to ss 12DA and 12DB of Australian Securities and Investments Commission Act 2001 (Cth), or in the alternative s 18 of Australian Consumer Law – allegations that respondent misled applicant by making various representations as to complex and unregulated investment scheme – where majority of representations found to be made – whether representations made in trade or commerce – whether investment scheme a financial product – whether representations conduct in relation to financial services – whether representations misleading or deceptive, or false or misleading – whether representations materially contributed to loss suffered by applicant – application allowed EVIDENCE – respondent opposed admission of audio recordings on basis he had not consented to or otherwise authorised their making – whether making of recordings gave rise to contravention of s 7 of Surveillance Devices Act 2007 (NSW) – evidence on voir dire – where certificates issued pursuant to s 128 of Evidence Act 1995 (Cth) – evidence admitted DAMAGES – where loss and damage suffered by applicant at time of investment into investment scheme – no relevant contingency – discretion to award pre-judgment interest under s 51A of Federal Court of Australia Act 1976 (Cth)

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) ss 5, 12BAA, 12BAB, 12BB, 12DA, 12DB Competition and Consumer Act 2010 (Cth), Schedule 2, Australian Consumer Law ss 4, 18, 236 Evidence Act 1995 (Cth) ss 128, 138 Federal Court of Australia Act 1976 (Cth) s 51A Surveillance Devices Act 2007 (NSW) s 7