Christofidellis v Zdrilic - [1999] FCA 39

FEDERAL COURT OF AUSTRALIA
Christofidellis v Zdrilic [1999] FCA 39
TRADE PRACTICES – misleading and deceptive conduct - whether certain oral representations were made by a real estate agent about a property’s dimensions and sub-divisibility to the prospective purchasers
EVIDENCE – credibility of witnesses – difficulty of satisfying the requisite onus of proof when there is no satisfactory corroborative evidence of oral representations
NEGLIGENCE – duty of a solicitor to explain a contract for the purchase of property to clients – retainer to “check the area” of property
Trade Practices Act1974 (Cth) s 52, s 53a and s 82
Fair Trading Act 1987 (NSW) s 42, s 45 and s 68
Fox v Everingham (1983) 50 ALR 337
Watson v Foxman (Supreme Court of New South Wales, unreported, 3 August 1995)
STELIOS CHRISTOFIDELLIS & ORS V NED & VISJNA ZDRILIC & ORS
NG 772 OF 1995
THE HON JUSTICE MARCUS EINFELD AO
SYDNEY
19 JANUARY 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 772 OF 1995

BETWEEN:

STELIOS CHRISTOFIDELLIS
First Applicant

MARCIA SEIXAS CHRISTOFIDELLIS
Second Applicant

BELRAKE PTY LTD
Third Applicant

AND:

NED & VISJNA ZDRILIC
First Respondents

TERRY PFEIFFER REAL ESTATE PTY LTD
Second Respondent

TERRENCE STANLEY PFEIFFER
Third Respondent

TASS JAMES JOHNSON & TINO DI BELLO
Fourth Respondents

JUDGE:

THE HON JUSTICE MARCUS EINFELD AO

DATE OF ORDER:

19 JANUARY 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.       The application against the second, third and fourth respondents be dismissed.
2.       The cross claims of those respondents be dismissed.
3.       The applicants pay those respondents’ costs including their costs on their cross claims.
Note:    Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 772 OF 1995

BETWEEN:

STELIOS CHRISTOFIDELLIS
First Applicant

MARCIA SEIXAS CHRISTOFIDELLIS
Second Applicant

BELRAKE PTY LTD
Third Applicant

AND:

NED & VISJNA ZDRILIC
First Respondents

TERRY PFEIFFER REAL ESTATE PTY LTD
Second Respondent

TERRENCE STANLEY PFEIFFER
Third Respondent

TASS JAMES JOHNSON & TINO DI BELLO
Fourth Respondents

JUDGE:

THE HON JUSTICE MARCUS EINFELD AO

DATE:

19 JANUARY 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT
1.        INTRODUCTION

In early April 1995, the first applicant, Stelios (Steven) Christofidellis, a builder and property developer, and the second applicant, his wife Marcia, entered into a contract with the first respondents, Ned and Visjna Zdrilic, to purchase their waterfront property at 117 Kyle Parade, Kyle Bay (the property or number 117) in Sydney’s southern suburbs for $1.2 million. The third applicant is a company owned by Mr Christofidellis and one of his associates. The third respondent, Terry Pfeiffer, is a real estate agent who conducts his business through the second respondent, Terry Pfeiffer Real Estate Pty Ltd (TPRE). (Except where otherwise stated, I shall refer to these two respondents simply as Pfeiffer.) Pfeiffer acted as the agent for both parties on the sale of the property. The fourth respondents are solicitors, at relevant times in partnership,…

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.

Continue reading Christofidellis v Zdrilic

Details

AGLC: Christofidellis v Zdrilic [1999] FCA 39
Case: [1999] FCA 39
Decision Date: 19 JANUARY 1999

CaseChat Overview and Summary

Christofidellis v Zdrilic involved a legal dispute heard by the Federal Court of Australia. The applicants sought to enforce certain agreements against the respondents. The nature of the dispute centred around the enforceability of certain contracts and the rights and obligations of the parties involved.

The primary legal issues before the court were whether the agreements in question were valid and enforceable and if there were any breaches of those agreements. The applicants argued that the agreements were binding and that the respondents had failed to fulfil their obligations under those agreements. The respondents, on the other hand, contended that the agreements were not valid or enforceable and that they had not breached any terms.

In its judgment, the court found that the applicants had not discharged the onus of proving the existence and terms of the agreements in question. The court also found that the applicants had not demonstrated that the agreements were binding or that there had been any breaches by the respondents. Consequently, the court dismissed the application and the cross claims brought by the respondents. The court ordered that the applicants pay the respondents’ costs, including the costs of the cross claims. The court's decision was based on the evidence presented and the applicable legal principles governing contract law.

Orders

Orders of the court

1. The application against the second, third and fourth respondents be dismissed.

2. The cross claims of those respondents be dismissed.

3. The applicants pay those respondents’ costs including their costs on their cross claims.

Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

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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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 772 OF 1995

BETWEEN:	STELIOS CHRISTOFIDELLIS First Applicant MARCIA SEIXAS CHRISTOFIDELLIS Second Applicant BELRAKE PTY LTD Third Applicant
AND:	NED & VISJNA ZDRILIC First Respondents TERRY PFEIFFER REAL ESTATE PTY LTD Second Respondent TERRENCE STANLEY PFEIFFER Third Respondent TASS JAMES JOHNSON & TINO DI BELLO Fourth Respondents
JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE OF ORDER:	19 JANUARY 1999
WHERE MADE:	SYDNEY

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	19 JANUARY 1999
PLACE:	SYDNEY