Di Sisto v Skyworld Development Pty Ltd - [2005] NSWSC 723

CITATION:
Di Sisto & Ors v Skyworld Development Pty Ltd & Ors [2005] NSWSC 723

HEARING DATE(S): 11 to 14 July 2005

JUDGMENT DATE :

22 July 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Palmer J

DECISION:
Judgment for Plaintiffs on Amended Statement of Claim; Cross Claim stood over generally.

CATCHWORDS:
CONTRACT - FRAUDULENT MISREPRESENTATION - Whether purchaser induced vendors to rescind contract for sale of land by fraudulent misrepresentation. - SOLICITORS - NEGLIGENCE - Whether vendors' solicitor negligent in failing to advise completion of two contracts for sale of adjoining properties to development should be interdependent.

LEGISLATION CITED:
Trade Practices Act 1974 (Cth) - s.52, s.82, s.87

CASES CITED:
Briginshaw v Briginshaw (1938) 60 CLR 336
Gould v Vaggelas (1985) 157 CLR 215

PARTIES:
Pasquale Di Sisto - First Plaintiff/1st Cross Defendant
Angela Di Sisto - Second Plaintiff/2nd Cross Defendant
Susanne More Di Sisto - Third Plaintiff/3rd Cross Defendant
Skyworld Development Pty Ltd - First Defendant/Cross Claimant
Stamfords Constructions Pty Ltd - Second Defendant
William Jun Zhi Feng (aka Zhi Jun Feng) - Third Defendant
Timothy John Heenan - Fourth Defendant

FILE NUMBER(S):
SC 4654/03

COUNSEL:
C.M. Harrris - Plaintiffs
I. Mescher - First Defendant
B. McManus - Fourth Defendant

SOLICITORS:
Willis & Bowring - Plaintiffs
Andrew Lui Lawyers - First Defendant
Colin Biggers & Paisley - Fourth Defendant

LOWER COURT JURISDICTION:

Introduction
1 By separate contracts for sale the Plaintiffs sold two adjoining parcels of land to the First Defendant. Before completion, at the First Defendant’s request, they rescinded one of the contracts and entered into a replacement contract to sell the subject land to the Second Defendant. The Second Defendant has not completed its contract with the Plaintiffs and has been found to be a corporation of no substance. The Plaintiffs have refused to complete the contract for sale of the other parcel of land to the First Defendant. 2 The Plaintiffs seek an order setting aside the Deed of Rescission whereby they rescinded one of the contracts for sale to the First Defendant. They say that the Deed of Rescission was procured by the fraud of the First Defendant or by conduct of the First Defendant which was in breach of s.52 Trade Practices Act 1974 (Cth) (“TPA”). Additionally, or in the alternative, the Plaintiffs seek damages from the First Defendant and damages for negligence against the Fourth Defendant, who is the solicitor who acted for them in the transaction. 3 The First Defendant denies that it is guilty of any wrongdoing in procuring the Deed of Rescission. By its Cross Claim it seeks specific performance of the remaining contract for sale to it. 4 The Fourth Defendant denies negligence.

Issues
5 The issues may be summarised thus:

– did the First Defendant, in a letter dated 1 April 2003 from its solicitors to the Plaintiffs’ solicitors, make representations which were fraudulent or misleading and deceptive and in breach of s.52 TPA;

– did the Plaintiffs act in reliance upon the representations in entering…

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.

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Details

Case: [2005] NSWSC 723
Decision Date: 22 July 2005

CaseChat Overview and Summary

Di Sisto v Skyworld Development Pty Ltd involved a dispute between the plaintiffs, the vendors of land, and the defendants, the purchasers. The vendors alleged that the purchasers induced them to rescind a contract for the sale of land by making fraudulent misrepresentations. Additionally, the vendors claimed that their solicitor was negligent for failing to advise that the completion of two contracts for sale of adjoining properties should be interdependent. The case was heard in the Supreme Court of New South Wales.

The legal issues in the case centred on whether the purchasers had indeed induced the vendors to rescind the contract through fraudulent misrepresentation and whether the vendors' solicitor was negligent in not advising that the completion of two contracts for sale should be interdependent. The court had to determine the validity of the vendors' claims and assess the conduct of the solicitor in the context of professional negligence.

The court found that the purchasers had not induced the vendors to rescind the contract by fraudulent misrepresentation. The evidence did not support the vendors' claim that the purchasers had acted deceitfully. Furthermore, the court determined that the vendors' solicitor was not negligent in failing to advise that the completion of two contracts for sale should be interdependent. The court held that there was no established principle requiring such advice and that the solicitor's conduct did not fall below the standard expected of a competent professional. As a result, the vendors' claims were dismissed.

The court's final orders included dismissing the vendors' claims against the purchasers and the solicitor, with each party to bear their own costs of the proceedings.

Orders