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
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
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- Case
- [2021] NSWSC 689
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
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Decision
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Ratio Decidendi
Legal Principle Established
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