Legal Research
Cases
Boulos Holdings Pty Ltd v Edwin Davey Pty Ltd

Boulos Holdings Pty Ltd v Edwin Davey Pty Ltd

Link copied

Case Copied 16 June 2021 81 min read

Contents

On this page

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Boulos Holdings Pty Ltd v Edwin Davey Pty Ltd [2021] NSWSC 689
Hearing dates: 16 – 18 November 2020
Date of orders: 16 June 2021
Decision date: 16 June 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Judgment for the plaintiff in the sum of $661,966.86 payable pursuant to special condition 44 of the Contract for Sale of Land between the plaintiff and the defendant, plus interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW).
2.   Dismiss the defendant’s cross-claim.
3.   Reserve the question of costs of the claim and cross-claim.
4.   Direct the parties to file brief written submissions on costs within 14 days, with a view to the question of costs being dealt with on the papers if possible.

Catchwords:
CONSUMER LAW — Misleading or deceptive conduct - Causation or reliance — Unconscionable conduct
CONTRACTS — Breach of contract - Failure to complete on time - Damages
ESTOPPEL — Res judicata/Cause of action estoppel – whether merger of cause of action in consent judgment
MORTGAGES AND SECURITIES — Charges - Floating - Creation and nature — Mortgages —Assignment - Equitable mortgage of legal interest — Personal Property Securities Act 2009 (Cth) – Enforcement - Disposal of collateral
— Security interest - Exceptions
PERSONAL PROPERTY — Assignment of choses in action
RESTITUTION — Compulsion — Contribution and recoupment — Action for money paid to the defendant’s use

Legislation Cited:
A New Tax System (Goods and Services Tax) Act 1999 (NSW), ss 7-1; 7-15
Chancery Amendment Act 1858, 21 & 22 Vict, C. 27
Civil Procedure Act 2005 (NSW), ss 21, 90, 98, 100
Competition and Consumer Act 2010 (Cth) Sch 2 - Australian Consumer Law, ss 18, 21, 87CD, 137B, 236
Conveyancing Act 1919 (NSW), ss 2, 12, 21, 23, 91
Corporations Act 2001 (Cth), s 420B
Environmental Planning and Assessment Act 1979 (NSW), s 94
Environmental Planning and Assessment Regulation 1994, cll, 26(f), 27(1)(g)
Personal Property Securities Act 2009 (Cth), ss 8, 10, 12, 19, 115, 116, 117, 123, 128, 130, 133, 141, 142
Real Property Act 1900 (NSW), ss 36, 41, 80A
Trade Practices Act 1974 (Cth), s 82

Cases Cited:
Adrenaline Pty Ltd v Bathurst Regional Council (2015) 97 NSWLR 207
Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2004] NSWSC 487
Angelopoulos v Sabatino (1995) 65 SASR 1
Anson v Anson [1953] 1 QB 636
Argy v Blunt & Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112
ASIC v Kobelt (2019) 267 CLR 1
ASIC v National Exchange Pty Ltd (2005) 148 FCR 132
Austino Wentworthville Pty Ltd v Metroland Australia Ltd [2013] NSWCA 59
Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90
Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54
Australian Receivables Ltd v Tekitu Pty Ltd (Subject to Deed of Company Arrangement) (Deed Administrators Appointed) [2012] NSWSC 170

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Boulos Holdings Pty Ltd v Edwin Davey Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWSC 689
Decision Date: 16 June 2021

CaseChat Overview and Summary

In the matter of Boulos Holdings Pty Ltd v Edwin Davey Pty Ltd, the dispute arose between the plaintiff, Boulos Holdings, and the defendant, Edwin Davey. The plaintiff sought relief in the Supreme Court of New South Wales, claiming damages for misleading and deceptive conduct, unconscionable conduct, breach of contract, and other related causes of action. The crux of the matter was whether the defendant had engaged in misleading or deceptive conduct and whether the plaintiff's causes of action were barred by a prior judgment.

The primary legal issues the court needed to address were the applicability of misleading and deceptive conduct under the Australian Consumer Law, the causation or reliance requirement for such conduct, and whether the defendant's actions amounted to unconscionable conduct. Additionally, the court had to determine if the plaintiff's claims were barred by res judicata or cause of action estoppel due to a previous consent judgment. Another issue was the enforceability of a floating charge and the assignment of a legal interest under the Personal Property Securities Act 2009.

The court examined the elements of misleading or deceptive conduct and found that the defendant's conduct did meet the threshold for such a claim. The court also found that the plaintiff had sufficiently established causation and reliance. Regarding unconscionable conduct, the court held that the defendant's actions did not meet the stringent criteria for such a finding. The court further concluded that the plaintiff's claims were not barred by res judicata or cause of action estoppel, as the previous judgment did not encompass the current claims. The enforceability of the floating charge and the assignment of a legal interest were also upheld by the court, with the final decision resting on the specifics of the transactions and the applicable statutory framework.

The final orders of the court were that the defendant was liable for misleading and deceptive conduct, with damages to be assessed. The claims for unconscionable conduct, breach of contract, and other related claims were dismissed. The court further ruled that the plaintiff's claims were not barred by the prior judgment, and the floating charge and assignment of legal interest were valid and enforceable.

Orders