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 2005JURISDICTION: 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 215PARTIES: 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 DefendantFILE NUMBER(S): SC 4654/03
COUNSEL: C.M. Harrris - Plaintiffs
I. Mescher - First Defendant
B. McManus - Fourth DefendantSOLICITORS: Willis & Bowring - Plaintiffs
Andrew Lui Lawyers - First Defendant
Colin Biggers & Paisley - Fourth Defendant
LOWER COURT JURISDICTION:
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 Before completion, at the First Defendant’s request, they rescinded one of the contracts and entered into a replacement contract to sell the subject land to the Second Defendant.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parcel of land to the First Defendant. 2 The Plaintiffs seek an order setting aside the Deed of Rescission whereby they rescinded one of the contracts for sale to the First Defendant.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.Introduction
5 The issues may be summarised thus:
Issues
– 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…
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- Case
- [2005] NSWSC 723
- Decision Date
CaseChat Overview and Summary
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
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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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