Court of Appeal
New South Wales
Case Title: Awad v Twin Creeks Properties Pty Limited Medium Neutral Citation: [2012] NSWCA 200 Hearing Date(s): 12 June 2012 Decision Date: 03 July 2012 Jurisdiction: Before: Allsop P at [1]
Macfarlan JA at [48]
Sackville AJA at [49]Decision: 1.Appeal dismissed with costs.
2.Cross-appeal allowed.
3.Set aside the orders made by the Supreme Court on 30 June 2011 and entered on 4 July 2011 and in lieu thereof order that judgment be entered for the defendant and that the plaintiffs pay the defendant's costs.
4.Cross-respondents pay the cross-appellant's costs of the cross-appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TRADE PRACTICES - consumer protection - misleading or deceptive conduct - future matters - purchase of residential lot in country club development - representations orally and in promotional material as to number and size of lots - representations as to construction and management of on-site hotel resort - intention and financial capacity of developer - planning approval - reasonable grounds for making representations
TRADE PRACTICES - consumer protection - misleading or deceptive conduct - remedies - damages and rescission - difficulty in ascribing monetary value to material inducement - availability of rescission
Legislation Cited: Trade Practices Act 1974 (Cth)
Cases Cited: Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353
Bullabidgee Pty Ltd v McCleary [2011] NSWCA 259
Henville v Walker [2001] HCA 52; 206 CLR 459
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; 210 CLR 109
Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4; 184 CLR 281
Marks v GIO Australia Holdings Ltd [1998] HCA 69; 196 CLR 494
McGrath v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2; 165 FCR 230
Murphy v Overton Investments Pty Ltd [2004] HCA 3; 216 CLR 388
North East Equity Pty Ltd v Proud Nominees Pty Ltd [2012] FCAFC 1; 285 ALR 217Texts Cited: Category: Principal judgment Parties: Eddie Michael Awad (First Appellant/First Cross-Respondent)
Karen Elizabeth Awad (Second Appellant/Second Cross-Respondent)
Twin Creeks Properties Pty Limited (Respondent/Cross-Appellant)Representation - Counsel: Counsel:
C J Birch SC/D S Weinberger (Appellants/Cross-Respondents)
J E Robson SC/D G Healey (Respondent/Cross-Appellant)- Solicitors: Solicitors:
Thurlow Fisher Solicitors (Appellants/Cross-Respondents)
Surry Partners Lawyers Pty Ltd
(Respondent/Cross-Appellant)File number(s): 2009/291401
Decision Under Appeal - Court / Tribunal: - Before: Brereton J - Date of Decision: 30 June 2011 - Citation: [2011] NSWSC 923 - Court File Number(s) 2009/291401 Publication Restriction:
JUDGMENT
ALLSOP P: Both the plaintiffs (the Awads) and the defendant (Twin Creeks Properties Pty Limited, to which I will refer as TCP) appeal…
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- Case
- [2012] NSWCA 200
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the representations made by the defendant concerning future matters lacked reasonable grounds, thereby constituting misleading or deceptive conduct. The court also had to consider the appropriate remedies available to the plaintiffs, specifically the availability of rescission and the assessment of damages, particularly where the monetary value of a material inducement was difficult to ascertain.
The Court of Appeal found that the representations made by the defendant regarding future matters did not lack reasonable grounds. The court applied the principles established in cases concerning misleading or deceptive conduct, particularly in relation to statements about future intentions or likely events. It was held that the plaintiffs had not established that the defendant lacked reasonable grounds for making the representations at the time they were made. Consequently, the court determined that the conduct did not contravene the relevant provisions of the *Trade Practices Act 1974*.
The Court of Appeal dismissed the plaintiffs' appeal and allowed the defendant's cross-appeal. The orders of the Supreme Court were set aside, and judgment was entered for the defendant. The plaintiffs were ordered to pay the defendant's costs of the appeal, and the cross-respondents were ordered to pay the cross-appellant's costs of the cross-appeal.
Orders
Orders of the court
1.Appeal dismissed with costs.
2.Cross-appeal allowed.
3.Set aside the orders made by the Supreme Court on 30 June 2011 and entered on 4 July 2011 and in lieu thereof order that judgment be entered for the defendant and that the plaintiffs pay the defendant's costs.
4.Cross-respondents pay the cross-appellant's costs of the cross-appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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