In April 2022 we reported on the Federal Court of Australia decision of Ripani v Century Legend Pty Ltd [2022] FCA 242. The proceeding involved claims of misleading or deceptive conduct regarding an artist’s impression or ‘render’ for an off-the-plan apartment development. The primary judge found that the render was misleading or deceptive in the circumstances. At the time of our update (available here) Century Legend Pty Ltd (the Developer) had already filed a notice of appeal.

The Full Court of the Federal Court of Australia has now handed down its decision on the appeal, in Century Legend Pty Ltd v Ripani [2022] FCAFC 191.

The Developer appealed on a number of grounds, asserting errors on the part of the first instance judge. One alleged error related to critical evidence from the Developer’s architect that she had told the Ripanis in meetings, before they were bound by the purchase contract, information that could have conveyed that the render was misleading.

Justice McElwaine in the Full Court, with whom Markovic and McEvoy JJ agreed, reviewed the primary judge’s analysis of the witness evidence on this point in detail, and agreed that the conclusions rested upon several errors. However, the Full Court considered that it was at a disadvantage because it did not have the benefit of seeing the witnesses give their evidence, amongst other things.

In light of these findings, the Full Court ordered a new trial of the proceeding, to be limited to the question of whether the Ripanis continued to rely on the Developer’s misleading conduct from the date of the first architect meeting until they were bound by the purchase agreement.

The full decision can be found here.