Shao v Zhang & Anor; Zhang & Anor v Shao [2022] NSWDC 38

Shao v Zhang & Anor; Zhang & Anor v Shao [2022] NSWDC 38

The plaintiff failed to prove misleading or deceptive conduct because the alleged representation about the licence and lease was not made in the relevant sense and, in any event, the plaintiff knew of and was unconcerned by the lease transfer risks and did not rely on any silence by the defendants. The court rejected the alleged $20,000 cash payment and the alleged 16 January 2020 agreement to pause or terminate the purchase. The purchase agreement remained on foot, the plaintiff repudiated it by failing to pay and abandoning the business, and the defendants accepted the repudiation by selling the business to a third party. The plaintiff was not entitled to restitution because the...

Jurisdiction
Australia
Judgment Date
28 February 2022
Procedural Posture
Civil Proceedings Arising From Agreements for the Proposed Purchase and Operation of a Beauty Business / Principal Judgment After Hearing on Statement of Claim and Cross Claim
Outcome
Judgment for the defendants on the statement of claim and judgment for the defendants/cross-claimants on the cross-claim in the amount of $269,237.46; costs and interest reserved.
Legal Topics
['purchase of Beauty Business Not Completed' 'misleading or Deceptive Conduct by Silence' 'lease Assignment and Licence Provisions' 'repudiation of Contract' 'restitution and Total Failure of Consideration' 'loss of Bargain Damages' 'credit Findings']
['contract' 'australian Consumer Law' 'evidence' 'damages' 'restitution'] ['purchase of Beauty Business Not Completed' 'misleading or Deceptive Conduct by Silence' 'lease Assignment and Licence Provisions' 'repudiation of Contract' 'restitution and Total Failure of Consideration' 'loss of Bargain Damages' 'credit Findings']

Case Brief

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Procedural Posture

Civil Proceedings Arising From Agreements for the Proposed Purchase and Operation of a Beauty Business / Principal Judgment After Hearing on Statement of Claim and Cross Claim

Legal Issues

  1. 1 ['Whether the defendants represented, expressly or by silence, that the licence agreement was permitted under the lease and whether that conduct was misleading or deceptive under s 18 of the Australian Consumer Law.' 'Whether the plaintiff relied on the alleged permitted licence representation when entering the agreements and making payments.' 'Whether the plaintiff paid $20,000 in cash to Ms Zhang on 25 June 2019.' 'Whether the parties agreed on 16 January 2020 to terminate or pause the purchase agreement by mutual consent.' 'Whether the plaintiff repudiated the purchase agreement and whether the defendants accepted that repudiation.' 'Whether the plaintiff was entitled to restitution of payments made under the agreements.' 'Whether the defendants/cross-claimants proved their claimed damages, including loss of bargain damages and other consequential losses.']

Ratio Decidendi

The plaintiff failed to prove misleading or deceptive conduct because the alleged representation about the licence and lease was not made in the relevant sense and, in any event, the plaintiff knew of and was unconcerned by the lease transfer risks and did not rely on any silence by the defendants. The court rejected the alleged $20,000 cash payment and the alleged 16 January 2020 agreement to pause or terminate the purchase. The purchase agreement remained on foot, the plaintiff repudiated it by failing to pay and abandoning the business, and the defendants accepted the repudiation by selling the business to a third party. The plaintiff was not entitled to restitution because the...

Court Disposition

Judgment for the defendants on the statement of claim and judgment for the defendants/cross-claimants on the cross-claim in the amount of $269,237.46; costs and interest reserved.

Orders

  • ['Judgment for the defendants on the statement of claim.' 'Judgment for the defendants/cross-claimants on the cross-claim in the amount of $269,237.46.' 'Costs and interest reserved, with liberty to apply.' 'Exhibits retained until further order.']