Smyth v Zou [2023] FCA 409

FEDERAL COURT OF AUSTRALIA

Smyth v Zou [2023] FCA 409 File number(s): NSD 1013 of 2019

Judgment of: HALLEY J

Date of judgment: 4 May 2023

Catchwords: CONTRACT – breach of contract where applicant and respondent entered into standard form contract for purpose of trading commodities (Contract) – where difficulties in advancing claims based on amendments to standard form contracts without legal assistance and on oral agreements – reliability of oral evidence of conversations that took place many years prior to commencement of proceedings – where claims directed at failure of respondent's related entities to complete purchases pursuant to eight contracts entered into with suppliers of commodities (Commodities Contracts) – where applicant claimed respondent breached the Contract, subsequent agreement alleged to be partly oral and partly written between the applicant and respondent (Previous Entitlements Agreement) and oral agreements for commission entered into prior to each of the Commodities Contracts (Procurement Contracts) – where applicant was not a party to the Contract and has no standing to enforce the Contract, alleged Procurement Contracts or alleged Previous Entitlements Agreement – where alleged Procurement Contracts and alleged Previous Entitlements Agreement not established – where claims for breach of the Contract, Previous Entitlements Agreement and Procurement Contracts dismissed CONSUMER LAW – misleading or deceptive conduct – false or misleading representations – where applicant alleged respondent made false or misleading representations as to funds held by the respondent in a bank account personally and in the name of a company of which the respondent was the sole director and shareholder – where representations were not made prior to entry into contract between applicant and respondent – where applicant did not relevantly rely on representations – claim dismissed TORTS – tort of deceit – false or misleading representations – where claim in deceit arises out of same facts as claim for misleading or deceptive conduct – where applicant did not relevantly rely on representations – claim dismissed LIMITATION OF ACTIONS – where applicant's causes of action under the ACL, in deceit and for breach of contract, with the exception of the Previous Entitlements Agreement, are statute barred – where applicant filed an Amended Statement of Claim – consideration of the 'relation back' rule – where only Previous Entitlements Agreement arose claims do not arise out of the same or substantially the same facts as previous claims