Nano Logistics Pty Ltd v Raby Omran [2024] NSWSC 236

Supreme Court New South Wales

Medium Neutral Citation: Nano Logistics Pty Ltd v Raby Omran [2024] NSWSC 236 Hearing dates: 6 and 7 March 2024 Date of orders: 7 March 2024 Decision date: 07 March 2024 Jurisdiction: Equity Before: Kunc J Decision: Statement of claim dismissed with costs Catchwords: CONSUMER LAW — Misleading or deceptive conduct — Liability of intermediaries — Claim fails on the facts — No issue of principle Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 18, 21 Cases Cited: Gan v Xie [2023] NSWCA 163 Category: Principal judgment Parties: Nano Logistics Pty Ltd (Plaintiff) Raby Omran (Defendant) Representation: Counsel: D Allen (Plaintiff) P Reynolds (Defendant)

Solicitors: Edmond Khoury (Plaintiff) Adam & Dean Lawyers (Defendant) File Number(s): 2019/00399344

EX TEMPORE JUDGMENT (revised)

Summary 1. Litigation is rarely without risks. One of those risks is that a key witness does not, as lawyers say, come up to proof. That is what happened in this case. For that reason, and without more, the plaintiff's case must fail. 2. The plaintiff, Nano Logistics Pty Ltd, sold a number of containers of plywood to RD Supplies Pty Ltd (RDS). The defendant, Mr Raby Omran, was at one time a director and shareholder of RDS. RDS contended that the plywood was defective. 3. There was no dispute between the parties that there was a contract between Nano and RDS to the effect that RDS would return eight containers of plywood in its possession if Nano gave RDS a refund. There was a dispute about the precise content of the refund obligation. $450,000 was repaid to RDS by Nano, but the plywood was never returned. RDS has since been deregistered. 4. Against that background, Nano now alleges that RDS (through Mr Omran) engaged in misleading and deceptive conduct, and unconscionable conduct, in contravention of the Australian Consumer Law (ACL), by representing to Nano that the containers of plywood would be returned if a refund was paid. Nano now sues Mr Omran under the ACL for the $450,000 plus interest at Court rates. Its case is that Mr Omran was knowingly involved in RDS' impugned conduct and that, knowing of the falsity of RDS' representation, Mr Omran's involvement in RDS' conduct was intentionally misleading and deceptive, and thereby fraudulent. 5. Nano's case depended on the Court accepting two key claims: 1. The allegation set out in paragraph 35 of the statement of claim: 35 On or about 18 August 2017 the Defendant on behalf of RD Supplies Pty Ltd represented that the RD Supplies Pty Ltd would return the eight containers in the possession of the RD Supplies Pty Ltd to the plaintiff if the plaintiff refunded RD Supplies Pty Ltd ('Refund Representation') 1. If Mr Omran had made the Refund Representation, Mr Omran was accessorily liable for RDS' breach of the ACL. 1. Critically, and simply, Nano's only witness, Mr Opeti John Kei (known and referred to between the parties as Stan) conceded in cross-examination that Mr Omran did not make the Refund Representation. His evidence was, and the Court finds, that it was Mr Amin Fakhri who said whatever was said on behalf of RDS. The Court also finds that, as Mr Omran has contended from the beginning of the proceedings, Mr Omran did not make the Refund Representation. That is the end of Nano's case, which will be dismissed. 2. Mr D Allen of Counsel appeared for Nano. The Court acknowledges that Mr Allen put everything that could properly be put in his client's interest having regard to the evidence that Mr Kei gave in the witness box. Mr P Reynolds of Counsel appeared for Mr Omran.