Choo v Zhang [2016] NSWCA 193

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Choo v Zhang [2016] NSWCA 193 Hearing dates: 21 July 2016 Decision date: 05 August 2016 Before: McColl JA at [1]; Basten JA at [2]; Sackville AJA at [3] Decision: 1. Appeal allowed. 2. Orders 5 and 6 made on 27 November 2015 be set aside. 3. Orders 5, 6 and 9(c) made on 18 January 2016 be set aside. 4. In lieu thereof, order that the Respondents' claim against the Appellant be dismissed. 5. The Respondents pay the Appellant's costs of the Respondents' claim in the District Court against the Appellant. 6. The Respondents pay the Appellant's costs of the appeal. 7. The Respondents have a certificate under the Suitors' Fund Act 1951 (NSW). Catchwords: MISLEADING OR DECEPTIVE CONDUCT - partners signed Licence Agreement by which they acquired a licence to conduct a chicken shop business - two partners (claimants) allege a third partner misrepresented the effect of the Licence Agreement - whether the third partner's statement amounts to the representation alleged by the claimants - whether the third partner's conduct was misleading or deceptive

DAMAGES - assuming the third partner's conduct was misleading, whether the claimants were entitled to recover the whole of the "licence fee" paid by them - absence of findings to justify recovery of the whole licence fee Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2, ss 18(1), 87CD, 131, 236(1) Fair Trading Act 1987 (NSW), s 28(1) Cases Cited: ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65; 224 FCR 1 Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304 Henville v Walker [2001] HCA 52; 206 CLR 459 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; 217 CLR 640 Potts v Miller [1940] HCA 43; 64 CLR 282 Poulet Frais Pty Ltd v Silver Fox Co Pty Ltd [2005] FCAFC 131; 220 ALR 211 Sidhu v Van Dyke [2014] HCA 19; 251 CLR 505 Zhang v Cliffman Pty Ltd (unrep, 27 November 2015, District Court) Zhang v Cliffman Pty Ltd (unrep, 18 January 2016, District Court) Category: Principal judgment Parties: Hin Tee Choo (Appellant) Guofeng Zhang (First Respondent) Sharon Zhang (Second Respondent) Representation: Counsel: Mr T Lynch SC / Mr R Chia (Appellant) Mr J Giles SC / Mr H Grace (Respondents)