A & C De Pasquale Pty Ltd v Buttigieg
[2001] VSC 492
•10 December 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 7195 of 2001
| A & C De Pasquale Pty.Ltd. | Plaintiff |
| v | |
| Paul Buttigieg and Michael Wataszcsuk | Defendants |
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JUDGE: | Beach J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 December 2001 | |
DATE OF JUDGMENT: | 10 December 2001 | |
CASE MAY BE CITED AS: | A & C De Pasquale P/L v Buttigieg | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 492 | |
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Summary judgment – Account of defendants not credible – Appeal from order of Master dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. M. Mulvany | Jafer Lawyers |
| For the Defendants | Mr. M. Dean | Kevin Azo |
HIS HONOUR:
The plaintiff in this proceeding, A & C De Pasquale Pty Ltd, is the owner of land situate at 178 to 186 Wattle Avenue, Werribee, being the land more particularly described in Certificate of Title Volume 8050 Folio 806.
By a contract of sale dated 3 February 2000, the plaintiff sold the land to the defendants, Paul Buttigieg and Michael Wataszcsuk, also known as Michael Watts, for the sum of $1,900,000.
There were express terms of the contract that the defendants would pay the sum of $1,900,000 to the plaintiff as follows; by a deposit of $700,000, payable as to $200,000 on the signing of the contract and as to the balance on or before 30 June 2000. As to the remainder of the purchase price, that was to be paid within twelve months of special condition twelve of the contract being satisfied.
That day the defendants gave to the plaintiff a postdated cheque dated 26 February 2000 for the sum of $2000. The cheque was dishonoured upon presentation.
On 13 October 2000, the plaintiff filed a writ in the court whereby it sought a declaration that by reason of the acceptance by the plaintiff of the repudiation of the contract by the defendants or, alternatively, by reason of the failure of the defendants to remedy the defaults as specified in a notice which had been served on them, the contract is at an end. They seek damages for breach of contract and payment of the sum of $200,000 being the initial deposit sum.
In due course, the defendants filed a defence and counterclaim. That occurred on 30 November 2000. They raise a number of matters in the counterclaim. They allege breaches of representations and warranties. There is an allegation that the plaintiff engaged in misleading and deceptive conduct contrary to the provisions of s.52 of the Trade Practices Act 1974 and s.11 of the Fair Trading Act 1985, that the plaintiff failed to exercise reasonable care, skill and diligence in representing and describing the sale of the land, that the parties entered into the contract under a unilateral mistake which was known to the plaintiff, and that the plaintiff breached some oral terms of agreements said to have been entered into by the parties prior to the execution of the contract of sale.
On 22 October 2001, the plaintiff filed a summons in the court seeking summary judgment in respect of the sum of $200,000 interest on the sum and damages to be assessed.
The matter came before Master Wheeler and on 21 November last Master Wheeler delivered written reasons for his decision in the matter and then proceeded to enter judgment in favour of the plaintiff against the defendants in the sum of $200,000 together with damages to be assessed.
I now have before me an appeal by the defendants from the Master's order.
I have read the affidavits in support of the plaintiff's application for summary judgment and those filed by the defendant. I have also read the reasons the Master gave for his decision.
I agree with everything the Master has said in those reasons. It is my opinion, which was also the opinion of the Master, that the circumstances of this particular case are very similar to those in Commonwealth Bank of Australia v. Wallace (1995) Australian Trade Practices Reports 387.
Looking at the whole of the circumstances of this case, in my opinion, the defendants' account of what was said to them at or about or before the time they entered into the contract of sale in question is not credible and is totally inconsistent with their subsequent conduct. As the Master pointed out in his reasons, the allegations made as to the deceptive and misleading conduct are so vague as to only lead to a very shadowy defence, if at all. In my view, they are so vague as to lead to no defence, shadowy or otherwise.
Accordingly, I am of the opinion that the Master made no error in the matter and the appeal from his order will be dismissed.
As this a hearing de novo, I order that there be judgment for the plaintiff against the defendants in the sum of $200,000 together with damages to be assessed and interest.
I order that the plaintiff's costs of the appeal, including any reserved costs, be taxed and when taxed paid by the defendants.
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