ABLE KING INVESTMENTS (SYDNEY) PTY. LIMITED & ANOR v. GUANG [2005] NSWSC 353

ABLE KING INVESTMENTS (SYDNEY) PTY. LIMITED & ANOR v. GUANG [2005] NSWSC 353

Because substituted service had been effected and the plaintiffs did not appear, the amended statement of claim was dismissed with costs. On the cross-claim, Able King had obligations directed to securing the resident visas, obtaining those visas was fundamental to the Co-operation Agreement, and Able King failed to perform beyond sending a letter. The security bond was refundable under the agreement or an implied refund term. Ms. Hau's representations, made as Able King's spokesperson and director, were misleading and contravened s.52 of the Trade Practices Act. There was also a total failure of consideration, entitling the cross-claimant to restitution. The calculated loss was $40,571...

Jurisdiction
Australia
Judgment Date
15 April 2005
Procedural Posture
Common Law Civil Proceedings Involving Contract, Misleading Conduct and Restitution Claims / Hearing and Judgment After Substituted Service, With No Appearance by the Plaintiffs
Outcome
The claims in the amended statement of claim were dismissed, and judgment was entered for the cross-claimant against both cross-defendants for $40,571 plus interest and costs.
Legal Topics
['agreement to Obtain Permanent Resident Visas' 'security Bond' 'implied Refund Term' 'breach of Contract' 'misleading and Deceptive Conduct Under S.52 of the Trade Practices Act' 'total Failure of Consideration' 'substituted Service' 'costs']
['contract Law' 'trade Practices' 'restitution' 'civil Procedure'] ['agreement to Obtain Permanent Resident Visas' 'security Bond' 'implied Refund Term' 'breach of Contract' 'misleading and Deceptive Conduct Under S.52 of the Trade Practices Act' 'total Failure of Consideration' 'substituted Service' 'costs']

Case Brief

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Procedural Posture

Common Law Civil Proceedings Involving Contract, Misleading Conduct and Restitution Claims / Hearing and Judgment After Substituted Service, With No Appearance by the Plaintiffs

Legal Issues

  1. 1 ["Whether the plaintiffs' amended statement of claim should be dismissed after substituted service and no appearance." 'Whether Able King Investments (Sydney) Pty. Limited breached the Co-operation Agreement by failing to complete sponsorship steps for the nominated persons to obtain Australian permanent resident visas.' 'Whether a refund term should be implied requiring return of the security bond if the visas were not granted.' 'Whether representations made by Ms. Hau contravened s.52 of the Trade Practices Act.' 'Whether the cross-claimant was entitled to restitution for total failure of consideration.' 'What amount, interest and costs should be ordered on the cross-claim.']

Ratio Decidendi

Because substituted service had been effected and the plaintiffs did not appear, the amended statement of claim was dismissed with costs. On the cross-claim, Able King had obligations directed to securing the resident visas, obtaining those visas was fundamental to the Co-operation Agreement, and Able King failed to perform beyond sending a letter. The security bond was refundable under the agreement or an implied refund term. Ms. Hau's representations, made as Able King's spokesperson and director, were misleading and contravened s.52 of the Trade Practices Act. There was also a total failure of consideration, entitling the cross-claimant to restitution. The calculated loss was $40,571...

Court Disposition

The claims in the amended statement of claim were dismissed, and judgment was entered for the cross-claimant against both cross-defendants for $40,571 plus interest and costs.

Orders

  • ['I dismiss the claims set out in the amended statement of claim.' "I order that the plaintiff pay the defendant's costs." 'On the cross-claim, I make an order in favour of the cross-claimant against both cross-defendants in the sum of $40,571 plus interest calculated in accordance with the provisions of s.94 of the...