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

Ripani v Century Legend Pty Ltd (No 3) [2023] FCA 812
Federal Court of Australia
Button J
New trials – the Ripanis alleged that Century Legend had 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 – the primary judge found in favour of the Ripanis – the Full Court allowed Century Legend’s appeal, and ordered a new trial on a limited basis – the new trial was to be limited to the issues of whether the Ripanis had continued to rely on the misleading or deceptive conduct of Century Legend within a period up until the time that the contract of sale became unconditional, and, if this were resolved in favour of the Ripanis, the relief that should be granted – the parties were bound by all other findings of fact and determinations made by the primary judge, but could 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 all questions of costs of the first trial were to be determined by the judge who hears the new trial – the parties were in dispute as to whether one issue formed part of the ambit of the new trial ordered by the Full Court, namely whether the effect of the representations was expunged by the date that the contract of sale became binding upon the parties by reason of what a person had said or showed to the Ripanis during the relevant period, or by the location of doors in various iterations of the floor plans that the Ripanis received and reviewed – held: the question of whether conduct is misleading or deceptive takes into account the context in which impugned conduct occurs – that context might mean that that conduct which, in isolation, might be misleading or deceptive, lacks that character when viewed in the round – however, Century Legend’s submission that the contextual assessment of impugned conduct meant that the issue described above had to form part of the new trial overlooked that the new trial was limited – the approach that ordinarily prevails when such matters first go to trial must yield to the specific circumstances of this case – the Full Court’s orders did not remit any issue beyond reliance – it was not to the point that, approaching the matter with a blank slate, the context may well have been relevant to the issue of whether Century Legend’s conduct was misleading or deceptive – therefore, the contested issue was not within the ambit of the new trial ordered by the Full Court.
Ripani