Forbes v Wan [2020] NSWCATAP 129

Forbes v Wan [2020] NSWCATAP 129

The Tribunal applied the wrong legal test for unconscionable conduct, failing to require elements such as exploitation or vulnerability as discussed in Kobelt. The evidence did not establish that Mr Forbes had knowledge of the essential elements or was sufficiently involved. Therefore, the order against Mr Forbes could not be sustained, and his liability was set aside.

Jurisdiction
Australia
Judgment Date
30 June 2020
Procedural Posture
Appeal / Decision of Appeal Panel
Outcome
Appeal allowed in part
Legal Topics
['unconscionable Conduct' 'misleading or Deceptive Conduct' 'directors’ Liability' 'consumer Claims' 'jurisdiction' 'rental Management' 'evidence (translations)']
['consumer Law' 'real Property Law' 'administrative Law'] ['unconscionable Conduct' 'misleading or Deceptive Conduct' 'directors’ Liability' 'consumer Claims' 'jurisdiction' 'rental Management' 'evidence (translations)']

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Procedural Posture

Appeal / Decision of Appeal Panel

Legal Issues

  1. 1 ['Whether the Tribunal applied the correct legal test for unconscionable conduct under the Australian Consumer Law (ACL)' 'Whether the Tribunal applied the correct legal test for misleading or deceptive conduct under the ACL' 'Whether the evidence supported a finding that Mr Forbes was involved in contraventions of the ACL' 'Whether Mr Forbes breached the Property and Stock Agents Act 2002 (NSW)' 'Whether a certified translation is required for WeChat messages relied upon as evidence']

Ratio Decidendi

The Tribunal applied the wrong legal test for unconscionable conduct, failing to require elements such as exploitation or vulnerability as discussed in Kobelt. The evidence did not establish that Mr Forbes had knowledge of the essential elements or was sufficiently involved. Therefore, the order against Mr Forbes could not be sustained, and his liability was set aside.

Court Disposition

Appeal allowed in part

Orders

  • ['The appeal is allowed, in part;' "Order 1 of the Tribunal is amended to read: 'Jeffrey Feng is ordered to pay the amount of $7,049.64 to Chenyang Wan within 28 days of the date of this order;'" 'The appeal is otherwise dismissed.']