Belconnen Lakeview Pty Ltd v Lloyd

• Jurisdiction: Australia Federal only
• Judgment Date: 25 October 2021
• Neutral Citation: [2021] FCAFC 187
• Date: 25 October 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

Belconnen Lakeview Pty Ltd v Lloyd [2021] FCAFC 187

Appeal from:		Lloyd v Belconnen Lakeview Pty Ltd [2019] FCA 2177 Lloyd v Belconnen Lakeview Pty Ltd (No 2) [2020] FCA 698
File number:	NSD 651 of 2020
Judgment of:	GRIFFITHS, DAVIES AND MOSHINSKY JJ
Date of judgment:	25 October 2021
Catchwords:	CONSUMER LAW – misleading or deceptive conduct – sale of unexpired term of a lease with respect to a residential unit in a development – where the draft contract was prepared on the basis that the supply would be a taxable supply and subject to the margin scheme for the purposes of GST – where, in fact, the developer had obtained a private binding ruling two years earlier that it could bring itself within an exception to the relevant GST provisions such that the supply would be an input taxed supply – where the primary judge found that the developer had engaged in misleading and deceptive conduct – where the primary judge found that the purchaser lost an opportunity of non-negligible value, namely an opportunity to renegotiate the contract between the date of the contract and the date of settlement – where the primary judge awarded damages to the purchaser for loss of that opportunity – whether the primary judge erred in holding that the purchaser lost an opportunity of non-negligible value – whether the primary judge erred in holding that the developer engaged in misleading or deceptive conduct ; CONSUMER LAW – misleading or deceptive conduct – accessorial liability – where the primary judge dismissed claims that two officers of a company were knowingly involved in contraventions by the company – whether the primary judge erred in so holding ; RESTITUTION – money had and received – sale of unexpired term of a lease with respect to a residential unit in a development – where the contract was prepared on the basis that the supply would be a taxable supply and subject to the margin scheme for the purposes of GST – where, in fact, the supply was an input taxed supply – where the purchaser brought a claim for money had and received with respect to the component of the purchase price referable to GST on the basis that there was a total failure of a severable part of the consideration – whether there was a total failure of a severable part of the consideration – whether the terms of the contract precluded recovery on the basis of money had and received
Legislation:	A New Tax System (Goods and Services Tax) Act 1999 (Cth), ss 7-1, 9-30, 9-40, 9-70, 40-1, 75-5, 75-10, 75-20 Competition and Consumer Act 2010 (Cth), Sch 2 Australian Consumer Law, ss 18, 236 Federal Court of Australia Act 1976 (Cth), ss 33N, 33ZB Tax Laws Amendment (2011 Measures No. 9) Act 2012 (Cth) Trade Practices Act 1974 (Cth), s 82 Business Franchise Licences (Tobacco) Act 1987 (NSW)
Cases cited:	Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301 Australian Competition and Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17 Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560 Badenach v Calvert (2016) 257 CLR 440 Baltic Shipping Co v Dillon (1993) 176 CLR 344 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 Bullabidgee Pty Ltd v McCleary [2011] NSWCA 259 Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 Chowder Bay Pty Ltd v Paganin [2018] FCAFC 25 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Federal Commissioner of Taxation v Gloxinia Investments Ltd (2010) 183 FCR 420 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 Ha v New South Wales (1997) 189 CLR 465 Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd (2006) 234 ALR 241 Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560 Masters Home Improvement Australia Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited (2010) 241 CLR 357 Optical 88 Ltd v Optical 88 Pty Ltd (2011) 197 FCR 67 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Prowl Pty Ltd v DL Brookvale Pty Ltd [2018] NSWSC 1255 Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1 RCR Energy Pty Ltd v WTE Co-Generation Pty Ltd [2017] VSCA 50 Rinbridge Marketing Pty Ltd v Walsh [2000] FCA 1738 Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 Rural Press Limited v Australian Competition and Consumer Commission (2003) 216 CLR 53 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 Warren v Coombes (1979) 142 CLR 531 Yorke v Lucas (1985) 158 CLR 661
Division:		General Division
Registry:		New South Wales
National Practice Area:		Commercial and Corporations
Sub-area:		Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	202
Date of hearing:	13 and 14 May 2021
Counsel for the Appellant and First Cross-Respondent:	Mr AJ McInerney SC with Mr JK Kennedy
Solicitor for the Appellant and First Cross-Respondent:	HWL Ebsworth Lawyers
Counsel for the Respondent and Cross-Appellant:	Mr MJ Darke SC with Mr C Colquhoun and Mr TE O’Brien
Solicitor for the Respondent and Cross-Appellant:	Corrs Chambers Westgarth
Counsel for the Second and Third Cross-Respondents:	Mr N Owens SC with Mr JK Kennedy
Solicitor for the Second and Third Cross-Respondents:	HWL Ebsworth Lawyers

ORDERS

NSD 651 of 2020

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