Federal Court of Australia

Ripani v Century Legend Pty Ltd (No 3) [2023] FCA 812

ORDERS

THE COURT ORDERS THAT:

1.    The new trial ordered by the Full Court (by paragraph 4(a) of the orders made on 30 November 2022 in VID 148 of 2022) is limited to the following two issues:

1.    Did the Ripanis continue to rely on the truth of the Representations (as defined in the agreed statement of facts) when the Ripanis:

(a)     conveyed to Century Legend that they were satisfied with the floor plan; and

(b)     provided the bank guarantee?

2.     What orders should the Court make under s 237 of the Australian Consumer Law (ACL) for compensation and under s 243 of the ACL in the circumstances of this case?

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

REASONS FOR JUDGMENT

BUTTON J:

1    On 18 March 2022, the primary judge delivered his reasons following the trial of the proceeding brought by the applicants (the Ripanis): Ripani v Century Legend Pty Ltd [2022] FCA 242 (Ripani PJ). Put broadly, the proceeding alleged that the respondent vendor (Century Legend) engaged in misleading or deceptive conduct by making representations about the design of a luxury off-the-plan apartment, in particular the width, and flow-through design, of an opening from the living area onto the outdoor terrace.

2    Century Legend appealed. The Full Court allowed the appeal: Century Legend Pty Ltd v Ripani [2022] FCAFC 191 (Ripani FC). The Full Court set aside the orders made by the primary judge and ordered a new trial on a limited basis. The parties are in dispute as to the ambit of the new trial.

3    The Full Court’s order is in the following terms (emphasis added):

4.     Pursuant to ss 28(1)(f) and 30 of the Federal Court of Australia Act 1976 (Cth) there be a new trial of the proceeding:

(a)     limited to the issue of whether the respondents continued to rely on the misleading or deceptive conduct of the appellant within the period April 2017 to the date the contract of sale became unconditional in August 2017, and if resolved in favour of the respondents, the relief that should be granted; and

(b)     on the basis that:

(i)     the parties are bound by each other finding of fact and determination made by the primary judge, save for the findings and determinations relevant to (a);

(ii)     the parties may adduce such evidence and may make such submissions in accordance with such case management orders as the judge who hears the new trial thinks fit; and

(iii)     all questions of costs of the trial before the primary judge are be determined by the judge who hears the new trial.

4    The significance of the reference to August 2017 in the Full Court’s orders is that the primary judge found that the contract did not become binding on the Ripanis until 29 August 2017, when they provided a bank guarantee in the amount of $944,000, in lieu of the required deposit. The primary judge proceeded on the basis that, when the Ripanis provided the bank guarantee, they must be taken to have approved of a version of the floor plan known as “Option E”: Ripani FC at [25]; Ripani PJ at [109].

5    To ensure that the ambit of the new trial was settled and it was clear which findings of the primary judge continued to bind the parties, I made case management orders requiring the parties to confer and seek to agree those matters. The parties have settled a list of agreed facts, but have not agreed whether a particular issue forms part of the ambit of the new trial ordered by the Full Court.

6    Century Legend and the Ripanis have agreed on issues 2 and 3 in the following list, but are in dispute regarding issue 1. Century Legend contended before me that it is within the ambit of the new trial, but the Ripanis took the contrary view. The three issues have been framed as follows by the parties:

1.     Was the effect of the Representations* expunged by the date that the contract of sale became binding upon the parties by reason of:

a.     what Kate Hart said or showed to the Ripanis during the period 7 April 2017 and 29 August 2017 about the door openings between the external areas and the internal areas; and/or

b.     where the doors were depicted on the various iterations of the floor plans that the Ripanis received and reviewed?

2.     Did the Ripanis continue to rely on the truth of the Representations (as defined in the agreed statement of facts) when the Ripanis:

a.     conveyed to Century Legend that they were satisfied with the floor plan; and

b.     provided the bank guarantee.

3.     What orders should the Court make under s 237 of the Australian Consumer Law (“ACL”) for compensation and under s 243 of the ACL in the circumstances of this case?

*Representations: The Hero Render represented to the Applicants that:

(a)     apartment 1401, when constructed, would accord with the hero render and in particular would include the flow through design;

(b)     as at March 2017 the Respondent intended to construct the Development and Apartment 1401 so that it would accord with the render and in particular intended to include the flow through design;

(c)     the building design shown in the render was achievable given existing building methods.

7    As may be seen, Century Legend contended that the new trial extends to whether or not the effect of the Representations was “expunged” on either of the two stated bases. The Ripanis contended that no question of the Representations having been “expunged” arises. Rather, they contended that the new trial is to be conducted on the basis that Century Legend engaged in misleading or deceptive conduct, and the only real issue (relief aside) is whether the Ripanis relied on that conduct through to the point when the contract became unconditional in late August 2017.

8    It is appropriate, if not necessary, that this dispute be resolved prior to the new trial. In my view, the Full Court having discharged its function of hearing the appeal and, in that sense, being functus officio, the only feasible way in which to resolve the dispute is to construe the Full Court’s order in light of the context in which it was made. That context is found in the Full Court’s reasons (McElwaine J, with whom Markovic and McEvoy JJ agreed), the primary judge’s reasons, and the submissions made to the Full Court on the appeal. Both sides agreed that this was the appropriate course, while Century Legend also noted (as another matter of context) the usual approach to misleading or deceptive conduct cases, and the Ripanis, for their part, stressed the primacy of the Full Court’s order. The approach I have set out also accords with authorities regarding the construction of court orders: see, eg, Lim v Comcare (2019) 165 ALD 217; [2019] FCAFC 104 at [40] (McKerracher, Markovic and Snaden JJ); Athens v Randwick City Council (2005) 64 NSWLR 58 at [129] (Santow JA, with whom Tobias JJA agreed).

9    As McElwaine J set out, the primary judge proceeded by identifying three questions on which the Ripanis’ claim to relief turned: Ripani FC at [15]; Ripani PJ at [9]–[10]. Those questions were:

(a)    First, whether the render [being an image referred to as the “hero render” depicting the opening onto the terrace] conveyed the representations alleged by the Ripanis.

(b)    Second, whether the Ripanis relied on any representations conveyed by the render at the time they entered into the contract to purchase the apartment.

(c)    Third, whether the Ripanis would have entered into the contract to purchase the apartment had they not believed at the time that the apartment would be constructed in accordance with the image in the render.

10    In relation to the issue of reliance, McElwaine J said as follows (Ripani FC at [20]):

On the question of reliance, which is now central to this appeal, his Honour rejected evidence from Ms Kate Hart, who at the time was employed by Rothelowman as an interior designer and senior associate, that on one or more occasions between May and June 2017, she told the respondents that an opening as depicted in the render was not achievable and that the likely width would be between 3m and 4m.

11    His Honour also referred to Century Legend’s “expunging” contention having been before the primary judge, as an alternative to reliance, as follows (Ripani FC at [26]–[27], emphasis added):

Considerable time was spent at the trial on the issue whether the respondents, in consequence of that approval, must have then understood that the width of the flow-through design depicted in the render would not be constructed in accordance with the approved floor plan. Century sought to make out a case that the effect that any misleading representation conveyed by the render was expunged by the date that the contract became binding upon the parties or that the respondents did not rely upon the render in deciding to approve the floor plan and with it to proceed with the contract. The primary judge resolved this issue adversely to Century in that his Honour accepted the evidence of the respondents that their focus in approving the floor plan was upon the internal bespoke details of the apartment, that they did not understand the detail conveyed by the Option E plan and that they continued to believe in the truth of the representations conveyed by the render.

Century led evidence from Ms Hart as to several meetings and email exchanges with the respondents between April and June 2017. She gave evidence to the effect that she had informed the respondents that the width of the opening between the internal and external areas of the apartment, with the doors open as depicted in the render, could not be achieved. Specifically, she gave evidence that she told them that “we couldn’t have just one large expansive opening” and that the maximum width that was achievable was in the order of 3m to 4m. This evidence was the subject of significant challenge in cross-examination. As acknowledged by the primary judge: “If Ms Hart’s evidence were accepted, her statements to the Ripanis would have had the effect of curing the misleading representations conveyed by the render”: PJ [139]. The respondents disputed that they had been informed of these facts by Ms Hart. Ultimately, the primary judge preferred their evidence and rejected the evidence of Ms Hart as a reconstruction as well as unreliable: PJ [215].

12    On appeal, Century Legend advanced four grounds of appeal, only the first of which is relevant to the present dispute:

1.    The primary judge erred in rejecting the evidence of Kate Hart to the effect that she informed the Respondents (Ripanis) in around June 2017, prior to the contract of sale with respect to Apartment 1401 (Contract) being entered into, that the opening for Apartment 14.01 could not be constructed in accordance with what was depicted in the render at Annexure I to the reasons for judgment, in circumstances where the corroborating documentary evidence, including in particular the annotated Option C floor plan at Annexure VI to the reasons for judgment, and the Option E floor plan at Annexure VII to the reasons for judgment that the Ripanis were satisfied with, made it glaringly improbable that Ms Hart’s evidence was a reconstruction (J [180] – J [221]).

13    In addressing that ground of appeal, McElwaine J identified the three bases on which the primary judge rejected the evidence of Ms Hart: inconsistency with objective circumstances; a finding of reconstruction and evasive and unreliable evidence; and acceptance of the contrary evidence of the Ripanis: Ripani FC at [44]. His Honour then addressed the evidence of Ms Hart, and the surrounding documentary evidence, in detail before setting out his conclusions on ground 1 as follows (emphasis added):

199     For these detailed reasons, I have concluded that ground one is made out. His Honour’s conclusion at PJ [215] that Ms Hart’s evidence should be rejected as reconstructed and unreliable rests upon several anterior errors with the consequence that it cannot stand. As that conclusion was central to the liability finding, the orders made by the primary judge must be set aside.

200     However, it does not follow that judgment should be entered for the appellant. This Court did not have the benefit of seeing and hearing the respondents and Ms Hart give their evidence and we do not have the entirety of the evidence adduced at the trial. That disadvantage is significant in this case. In my view, there must be a new trial limited to the hearing and determination of the issue upon which ground one succeeds, which course for similar reasons was contemplated, but not ultimately implemented, by Meagher and Leeming JJA in Prouten [v Chapman [2021] NSWCA 207] at [16]–[17]. Brereton JA in his dissenting reasons in that case concluded that he could be satisfied based on the contemporaneous documents that the accident occurred in the manner described by the plaintiff/appellant. I am unable to be similarly satisfied based on the documents in this case. Much turns on the oral evidence and who is to be believed.

201     This is clearly a case where the error of the primary judge was central to the result. Whether the evidence of Ms Hart is to be preferred to that of the respondents as to what was said at the meetings in May and June 2017 (and by reference to the various iterations of the floorplans that were provided, considered and discussed between April and August 2017) is a matter that must be determined by a trial judge who has the benefit of hearing and seeing each of those persons give their evidence and based upon a correct understanding of the chronology of events and the meaning of the contemporaneous documents.

202     This Court may grant a new trial on any ground it considers appropriate pursuant to s 28(1)(f) of the FCA Act. A new trial is to be distinguished from a remittal for further hearing pursuant to s 28(1)(c) and as explained by Finkelstein J in Community and Public Sector Union v Telstra Corporation Ltd (2001) 112 FCR 324; [2001] FCA 479, in some circumstances involving errors of fact, a new trial might be limited to the particular issue the subject of error. Further, as his Honour stated in his supplementary judgment ((2001) 112 FCR 330; [2001] FCA 564), s 30 of the FCA Act provides that this Court may grant a new trial “either generally or on particular issues only, as it thinks fit”.

203     It is obviously undesirable that there be a new trial at which each issue determined adversely to the appellant is open to be re-agitated. The appellant’s success on this ground must frame the scope of the new trial which is limited to the question of reliance by the respondents upon the misleading and deceptive conduct of the appellant between the period 7 April 2017 to the date the contract became unconditional by payment of the deposit on 29 August 2017. The evidence to be adduced on that question will be for the parties to determine, subject to such further case management orders as the new trial judge thinks fit. The parties must remain bound by each other finding of fact and determination of the primary judge, save as disturbed by this Court.

204     Further, it is appropriate for the new trial judge to determine all consequential issues that may arise: if the respondents succeed, there will arise the assessment of damages and interest for example. And the question of the costs of the trial before the primary judge should also be determined upon the conclusion of the limited new trial.

14    Century Legend’s submissions on the ambit of the new trial stressed that the question of whether or not conduct is misleading or deceptive depends on an assessment of the impugned conduct in context. It submitted that that context includes any corrective conduct or statements which, in the present matter, includes the provision of the various floor plans, and the actions of Ms Hart. Century Legend submitted that it is “impossible to divorce the question of whether the Applicants continued to rely on the Representations as at 29 August 2017 from the question of whether the Respondent’s conduct continued to be misleading or deceptive at that time”.

15    The Ripanis submitted that Century Legend’s proposed formulation seeks to reopen the question of whether its conduct was misleading or deceptive, and is not within the scope of the Full Court’s orders. They contended that, before the primary judge, Century Legend relied on Ms Hart’s evidence to advance an argument that the Ripanis did not rely upon Century Legend’s conduct, rather than submitting that Ms Hart’s alleged “disclosure” affected the definition of Century Legend’s conduct. In the Ripanis’ submission, both McElwaine J’s reasons and the Full Court’s order “took as an established fact the misleading conduct established by” the primary judge, namely the representations in the hero render, and the only remaining question was whether the Ripanis continued to rely upon the truth of those representations when the contract of sale became legally binding. Additionally, the Ripanis emphasised that the use of the word “expunged” would introduce ambiguity and uncertainty into the issues to be determined in the new trial.

16    I will briefly address this last submission. The first (contested) issue has been framed by Century Legend in terms of whether the “effect of the Representations” was “expunged”. I accept that there is some ambiguity in the formulation of this issue as it refers to expunging the effect of the Representations without specifying whether, for example, it is referring to the effect of the Representations on the Ripanis’ understanding of what the opening would be like, or whether it is referring to the effect of the Representations being expunged such that there is no longer any misleading or deceptive conduct on the part of Century Legend as at 29 August 2017, whether or not the Ripanis actually understood that the opening would not be as it had been presented in the hero render. However, it is clear from Century Legend’s submissions that it conceives of this issue in the latter sense explained; ie on the basis that it would extend to consideration of whether or not Century Legend had, as at 29 August 2017, engaged in misleading or deceptive conduct at all.

17    I note that Century Legend’s formulation of the first (disputed) issue has two limbs: the floor plans and what Ms Hart said or showed the Ripanis in the relevant period of time. I turn, first, to the role of the evidence of Ms Hart in the primary judge’s analysis, which was the subject of the appeal. As I have noted above, the primary judge began by identifying the three issues on which the Ripanis’ claim to relief turned: whether the render conveyed the alleged representations; whether the Ripanis relied on those representations; and whether the Ripanis would have entered into the contract had they not believed the apartment would be constructed in conformity with the render: Ripani PJ at [9]; Ripani FC at [15].

18    The primary judge structured his reasons by reference to these three issues. His Honour’s analysis of “The Representations” commenced, under that heading, at [28] and concluded at [98]. The primary judge there considered what was conveyed by the hero render, and then addressed Century Legend’s contentions. The primary judge summarised Century Legend’s contentions as follows (Ripani PJ at [46]):

Century Legend contends that the render should not be looked at in isolation and, in any event, did not convey a misleading representation when regard is had to: (i) the fact it is an artist’s impression only; (ii) the relevant contractual and non-contractual disclaimers; and (iii) the fact that various iterations of the floor plans for apartment 14.01 showed the opening would not be built as depicted in the render.

19    The primary judge then considered those matters (other than the impact of the floor plans) and concluded (Ripani PJ at [92], [95]) that the render had conveyed the following representations:

Apartment 1401 when constructed would accord with the Visual Representation and in particular would include the flow-through design.

As at March 2017 the Respondent intended to construct the development and Apartment 1401 so that it would accord with the Visual Representation and in particular intended to include the flow-through design.

The building design shown in the Visual Representation was achievable given existing building methods.

20    His Honour then considered various contextual facts and commenced his analysis, under the heading “reliance” at [139]. In introducing that discussion, the primary judge said:

I now turn to the question of reliance, in particular, the conflict in the oral evidence concerning statements Ms Hart said she made to the Ripanis prior to their entry into the contract. If Ms Hart’s evidence were accepted, her statements to the Ripanis would have had the effect of curing the misleading representations conveyed by the render and/or Mr Tran.

21    As is clear from the next paragraph, his Honour’s reference to “curing” the misleading representations referred to curing the representations by the Ripanis having been disabused by Ms Hart of any misapprehension created by the hero render: Ripani PJ at [140]. The critical evidence of Ms Hart was that she explained to the Ripanis that it was impossible to have any wider opening than had been indicated by the floor plans. In its submissions, Century Legend relied on the passage of McElwaine J’s judgment where his Honour referred back to the “curing” observation of the trial judge. However, given the place and nature of that observation in the primary judge’s reasons, reference back to it by McElwaine J (Ripani FC at [27]) does not elevate or change the role of Ms Hart’s evidence at the original trial before the primary judge, or suggest that the Full Court intended, by its order, to re-open the question of whether Century Legend had engaged in misleading or deceptive conduct. Nor does the primary judge’s broader statement of principle (Ripani PJ at [156]) change the basis upon which his Honour actually addressed Ms Hart’s evidence (namely on the issue of reliance).

22    The primary judge also referred to Century Legend’s submission that his Honour should reject the Ripanis’ assertion that they did not discern the positioning of the doors on the basis that those openings were plainly marked on floor plans that the Ripanis received: Ripani PJ at [170]. Century Legend contended that the primary judge ought to conclude that the Ripanis must have appreciated that the openings on the floor plans were not consistent with those depicted by the render and so did not rely on the representations conveyed by the render: Ripani PJ at [171]. This was characterised by the primary judge as a causation argument which was maintained: Ripani PJ at [172]. Addressing that “causation” defence, the primary judge accepted the Ripanis’ evidence that they did not closely scrutinise that aspect of the plans and did not observe or interpret the single bladed arrows which apparently represent doorway openings. The primary judge concluded that the floor plans “were not effective to disabuse the Ripanis of their belief that the apartment would look like the render”: Ripani PJ at [179].

23    Having addressed that causation defence, based on the plans, the primary judge then turned to what his Honour characterised as a “further causation defence” arising from the evidence of Ms Hart: Ripani PJ at [180]. That analysis continued through to [221]. It should be noted that ground 1 of the appeal was directed to [180]–[221] of the primary judge’s reasons. Those paragraphs were exclusively concerned with the evidence of Ms Hart and the Ripanis, and why the primary judge concluded (as his Honour did at [215]) that Ms Hart’s evidence was “reconstructed and unreliable”. The primary judge concluded that part of the analysis, stating (at [221]):

For the above reasons, I reject the evidence of Ms Hart about the critical matter of whether the Ripanis were disabused by her of the inaccuracy of the render and I accept the evidence to the contrary by the Ripanis.

24    As may be seen, the primary judge proceeded on the basis that Ms Hart’s evidence was relied on by Century Legend to establish that, by her statements, she disabused the Ripanis of the misapprehension caused by the hero render, such that their case failed on causation. The primary judge did not proceed on the basis that Ms Hart’s evidence was relied on by Century Legend on the basis that, as a matter of context, what the Ripanis were told by Ms Hart meant that the conduct constituted by the hero render was not misleading or deceptive, or did not convey the representations alleged by the Ripanis. There are indications in the submissions made to the primary judge that Century Legend sought to depart from the pleadings (which were not amended following Ms Hart’s evidence) and rely on Ms Hart’s evidence to contend that, incorporating reference to her evidence, there was no misleading or deceptive conduct at all. Be that as it may, the primary judge did not proceed on the basis that Century Legend was relying on the evidence in that way and no ground of appeal contended that the primary judge erred in not considering the significance of Ms Hart’s evidence on that basis.

25    Century Legend’s conception of the issues for the new trial would introduce, as an issue at the new trial, an issue that was not decided by the primary judge. In no way can the Full Court’s orders, construed in light of the reasons of McElwaine J, be read as directing a new trial that encompasses such a new front. I accept the Ripanis’ submission that the orders, as well as McElwaine J’s reasons, took as established that the relevant conduct was misleading. The Full Court’s orders refer explicitly to the issue of reliance being the subject matter of the new trial. Those orders are framed in terms which also refer explicitly to “the misleading or deceptive conduct” of Century Legend (emphasis added). As is apparent from the foregoing, the issue of reliance, as it was addressed by the primary judge, was determined on the basis that the primary judge did not accept that the Ripanis had been disabused by Ms Hart (or receipt of the floor plans) of their misapprehension about the opening to the terrace. On appeal, McElwaine J upheld ground 1 of the appeal, which contended that the primary judge erred in rejecting the evidence of Ms Hart. The primary judge’s rejection of Ms Hart’s evidence went to the issue of reliance and causation, and not any broader suggestion that it affected whether or not the representations had been made, or whether there had been misleading or deceptive conduct at all. On appeal, the finding of McElwaine J that the primary judge erred in rejecting the evidence of Ms Hart on the basis stated was a finding made in determining ground 1 of the notice of appeal, and was located wholly within the causation/reliance part of the analysis. Accordingly, I do not accept Century Legend’s submission that ground 1 of the notice of appeal opened up a wholesale attack on the misleading or deceptive conduct findings, such that the Full Court’s conclusion that the primary judge erred in rejecting Ms Hart’s evidence means that its order opens up issues beyond reliance. Rather, and as the Ripanis submitted, the only ground of appeal going to the issue of misleading or deceptive conduct (cf reliance) was ground 2.

26    Further, as noted, Century Legend’s new issue also raises the issue of the floor plans as “expunging” the effect of the Representations. I have referred above to the passages of the primary judge’s reasons wherein his Honour rejected (as part of the reliance/causation analysis) the contention that the floor plans disabused the Ripanis of the misleading impressions created by the render. The primary judge plainly did not accept that the floor plans clearly indicated that the opening would not accord with the render (whether or not the Ripanis actually appreciated that to be the case).

27    While it appears (from Ripani PJ at [46]) that Century Legend relied on the floor plans as going to the issue of whether the conduct was misleading or deceptive (and not merely the issue of reliance), the primary judge only considered the floor plans in the context of analysing reliance. No ground of appeal contended that the primary judge erred in so doing.

28    Further, while it is also clear that McElwaine J took a different view of the clarity of the floor plans (see Ripani FC at [24], [81], [83], [87]–[88], [93], [108], [189], [193]–[195]), his Honour’s views were expressed in the context of analysing the Ripanis’ claimed lack of awareness of the true position as part of the broader analysis of reliance and the primary judge’s rejection of Ms Hart’s evidence in favour of the evidence of the Ripanis. The effect of the floor plans on whether there was misleading or deceptive conduct at all (cf the issue of reliance) was not an issue that was agitated on the appeal. The appeal was not advanced by Century Legend on the ground that the primary judge erred in concluding that the plans were “inscrutable”, or that the primary judge should have found, by reference to the plans, that Century Legend had not engaged in misleading or deceptive conduct at all. For these reasons, the Full Court’s order does not open up, for consideration at the new trial on reliance, the issue of the Representations being “expunged” by the floor plans such that there was no misleading or deceptive conduct at the time the contract became unconditional.

29    The conduct of the trial and the appeal on the basis that the evidence of Ms Hart and the floor plans went to the issue of reliance is also clear from the following passage of McElwaine J’s reasons (Ripani FC at [196]–[198], emphasis added):

196     Having set out this evidence, the primary judge rejected the submission put by the appellant that he ought to conclude that the respondents, upon the careful review of the iterations of the floor plans, ought to have appreciated that the proposed doors did not match the depiction in the render. At PJ [175] he said:

It is convenient at this point to address the original defence as to causation, as I have described it. The evidence of the Ripanis and of Ms Hart revealed that the focus of discussions in the pre-contractual period was on the bespoke floor plan and fit out of the apartment. The Ripanis were interested in detail that mattered to them, including in the case of Mr Ripani particular fittings such as a cigar humidor and a watch winder. They were also interested in the floor layout of the apartment. Thus, the various iterations of the floor plans mainly involved changes to aspects of the internal floor plan and fit out. The Ripanis did not scrutinise the floor plans closely for potential discrepancies against the render, nor was that to be expected of them. Further, they did not observe, and then interpret, the ‘single-bladed arrows’ as apparently indicating doorway openings. Again, that is unsurprising. The relevant markings are small and faint, and there is no legend on the plan describing what various markings signified. In my view, the markings said to indicate door openings are inscrutable to the untrained eye. They are also obscured by the graphic depiction of the herringbone flooring on the floor plans.

197     At PJ [176], the primary judge accepted a submission that an alternative way of interpreting the detail of the floor plans is to read the proposed opening as providing “a full width stacking system of the type depicted in the render”. He described the floor plans as “inscrutable” in detail. Further, at PJ [177], he noted that the drawings did not include elevations and speculated that if elevations had been provided “it would have presumably revealed the size and scale of the opening to be constructed”. His Honour concluded this portion of his reasons at PJ [177] with the sentence: “[i]t seems to me that if the Ripanis were to be disabused of the impression created by the render, one convenient, clear and effective way to have done so would have been to produce a relevant elevation drawing”. Senior counsel for the appellant criticises that reasoning as speculative. I agree. And with respect, that is not the only difficulty with this aspect of the reasons. The first sentence at PJ [175] is susceptible to interpretation that his Honour considered that the appellant bore an onus of proof on the causation question. It did not. The respondents were obliged to prove that they relied upon the misleading and deceptive conduct, being the representation conveyed by the render. The appellant introduced and relied upon the evidence of Ms Hart as a reason why the primary judge should reject the subjective reliance evidence of the respondents. As is well understood, subjective evidence as to that type of reliance is ordinarily treated with caution: Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18, Gummow J at [87]–[89].

198     In any event, it is far more difficult to accept his Honour’s characterisation of the floor plans as “inscrutable”. When objectively viewed in A3 format (the respondents stated more than once that they intended to print and view the plans at that size) the proposed arrangement of sliding doors on the western façade is clearly depicted with arrows that show the direction of travel. There is nothing impenetrable or unfathomable about that detail.

30    Century Legend referred to passages in Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 at [37] (Gleeson CJ, Hayne and Heydon JJ), [109] (McHugh J) and Hinds v Ross [2006] FCA 41 at [5], [69]–[70] (Nicholson J). As those (and myriad other) cases make clear, the question of whether conduct is misleading or deceptive takes into account the context in which impugned conduct occurs. That context can be such that conduct which, in isolation, might be misleading or deceptive, lacks that character when viewed in the round. That is no doubt the case, but Century Legend’s submission that the contextual assessment of impugned conduct means that issue 1 must form part of the new trial overlooks that the new trial that the Full Court ordered is limited. The approach that ordinarily prevails when such matters first go to trial must yield to the specific circumstances of this case. I am tasked with conducting a new trial of a limited issue; the Full Court’s orders did not remit any issue beyond reliance. It is not to the point that, approaching the matter with a blank slate, Ms Hart’s conduct may well have been relevant to the issue of whether Century Legend’s conduct was misleading or deceptive, as well as to the issue of reliance.

31    For the foregoing reasons, issue 1, as formulated by Century Legend, is not within the ambit of the new trial ordered by the Full Court.

Associate:

Dated:    18 July 2023