Ripani v Century Legend Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 18 March 2022
• Neutral Citation: [2022] FCA 242
• Date: 18 March 2022

Federal Court of Australia

Ripani v Century Legend Pty Ltd [2022] FCA 242

File number:	VID 266 of 2020
Judgment of:	ANASTASSIOU J
Date of judgment:	18 March 2022
Catchwords:	CONSUMER LAW – misleading or deceptive conduct – contract of sale for apartment sold ‘off-the-plan’ – representations conveyed by a computer generated image known as a render – render contained in marketing brochure, exhibited at display suite and on website for development – representations also made by real estate agent on behalf of developer – whether representations sufficiently precise to found contravention of s 18 of the Australian Consumer Law (ACL) – relevance of inscription ‘artist impression’ on render – relevance of disclaimers and exclusion clauses – whether representations were made as to a future matter without reasonable grounds – whether representations misleading or deceptive or likely to mislead or deceive – whether Applicants relied on representations in entering into contract of sale – whether misleading representation cured by statements made by architect prior to Applicants entering into contract of sale – relevance of objective circumstances to evidence of disinterested witness ; CONSUMER LAW – remedies – whether appropriate to grant relief in the nature of statutory rescission pursuant to s 237 and s 243(a) of ACL – whether Applicants suffered or were likely to suffer loss or damage because of contravening conduct of developer – loss in value of real estate property – loss or damage suffered by Applicants – whether entry into contract of sale constituted loss or damage in particular circumstances – discretionary considerations – alternative claim for rescission in equity – differences between rescission in equity and statutory relief in the nature of rescission – contract of sale rescinded
Legislation:	Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, ss 4, 18, 236, 237, 243
Cases cited:	A H McDonald & Co Pty Ltd v Wells [1931] HCA 24; 45 CLR 506 Alati v Kruger [1955] HCA 64; 94 CLR 216 Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd [2019] FCA 676; 371 ALR 396 Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 3) [2021] FCA 737 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 Australian Securities and Investments Commission v La Trobe Financial Asset Management Ltd [2021] FCA 1417 Bonham as Trustee for the Aucham Super Fund v Iluka Resources Ltd [2022] FCA 71 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 Cargill Australia Ltd v Viterra Malt Pty Ltd (No 28) [2022] VSC 13 Clark Equipment Australia Ltd v Covcat Pty Ltd (1987) 71 ALR 367 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105 Harvard Nominees Pty Ltd v Tiller [2020] FCAFC 229; 282 FCR 530 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR 546; 79 ALR 83 HW Thompson Building Pty Ltd v Allen Property Services Pty Ltd (1983) 48 ALR 667 National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] FCAFC 90; 49 ACSR 369 Oliana Foods Pty Ltd v Culinary Co Pty Ltd (In Liq) [2020] VSC 693 Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; 149 CLR 537 Preda trading as Parramatta Diagnostic Imaging v Australian Imaging and Ultrasound Distributors Pty Limited [2007] NSWSC 155 Redgrave v Hurd (1881) 20 Ch D 1 Tanwar Enterprises Pty Limited v Cauchi [2003] HCA 57; 217 CLR 315 Walplan Pty Ltd v Wallace [1985] FCA 619; 8 FCR 27 Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514
	Dal Pont G, Equity and Trusts in Australia (7th ed, Thomson Reuters, 2019) Heydon J D, Leeming M J, Turner P G, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed, LexisNexis Australia, 2014) Young, P W, Croft, C E, Smith M L, On Equity (Thomson Reuters, 2009)
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	255
Date of hearing:	27 to 29 January 2021 4, 5, 8, 9, 19 February 2021 24 to 26 March 2021 8 April 2021
Counsel for the Applicants:	Mr S W. Stuckey QC
Solicitor for the Applicants:	Zervos Lawyers
Counsel for the Respondent:	Ms G. Costello QC with Ms E. Levine
Solicitor for the Respondent:	Patrick & Associates

ORDERS

		VID 266 of 2020
BETWEEN:	WALTER RIPANI First Applicant ; NINA RIPANI Second Applicant
AND:	CENTURY LEGEND PTY LTD Respondent

order made by:	ANASTASSIOU J
DATE OF ORDER:	18 March 2022

THE COURT ORDERS THAT:

1. The contract of sale for the purchase by the Applicants of apartment 14.01 at 20-21 Queens Road, Melbourne, made on or about 29 August 2017, be rescinded.

2. By no later than 4:00pm on 25 March 2022, the Respondent return to the Applicants the bank guarantee provided on behalf of the Applicants by the Bank of Melbourne on 29 August 2017 in lieu of a deposit.

3. The Respondent pay damages and pre‑judgment interest to the Applicants in an amount to be determined in accordance with paragraph 4 of these orders.

4. By no later than 4:00pm on 25 March 2022, the parties file:

   1. an agreed minute of the sums payable for damages and pre-judgment interest in accordance with these reasons for judgment; or

   2. failing agreement, the parties are to file separate minutes and submissions, limited to four pages, concerning their respective calculations of damages and pre-judgment interest payable in accordance with these reasons.

5. The Respondent pay the Applicants’ costs of and incidental to the proceeding, to be agreed and in default of agreement assessed on a standard basis.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANASTASSIOU J:

Introduction

1. This case concerns the sale of an apartment ‘off-the-plan’, specifically whether the purchasers were misled or deceived by statements made by or on behalf of the vendor concerning certain features of the apartment prior to the parties entering into a contract of sale. The vendor is the Respondent to this proceeding, Century Legend Pty Ltd, which traded under the business name JD...