Awad v Twin Creeks Properties Pty Ltd

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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 217

Texts 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

  1. 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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Details
Case
[2012] NSWCA 200
Decision Date

CaseChat Overview and Summary

Awad and others (the plaintiffs) appealed to the Court of Appeal of New South Wales against a decision of the Supreme Court concerning their purchase of residential lots in a country club development by Twin Creeks Properties Pty Ltd (the defendant). The dispute centred on allegations of misleading or deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). The plaintiffs claimed that representations made by the defendant, both orally and in promotional materials, regarding the number and size of lots, the construction and management of an on-site hotel resort, and the defendant's intention and financial capacity, as well as planning approval, were false or misleading.

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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