Margaris v Brahmbhatt

[2009] NSWDC 137

CITATION:	Margaris v Brahmbhatt [2009] NSWDC 137
HEARING DATE(S):	11 - 12 June 2009
JUDGMENT DATE:	19 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	1. Verdict for the defendants in the plaintiff's claim. 2. Verdict for the cross claimants against the cross defendant.
CATCHWORDS:	CONTRACTS - misrepresentation - rescission - Contracts Review Act - unfair contracts - Fair Trading Act - misleading and deceptive conduct
LEGISLATION CITED:	Contracts Review Act 1980 Fair Trading Act 1987 Conveyancing Act 1919 Cheques Act 1986 (Cth)
CASES CITED:	Taylor v Johnson (1983) 151 CLR 422 Watson v Foxman (2000) 49 NSWLR 315 Clancy v Prince [2001] NSWSC 85 Commercial Banking Co of Sydney Ltd v R H Brown & Co (1972) 126 CLR 337 Oraka Pty Ltd v Leda Holdings Ltd (1997) ATPR 41-558 Derek v Peek (1889) 14 App Cas 337
PARTIES:	Zois Margaris (Plaintiff) Rajesh Muljibhai Brahmbhatt (First Defendant) Sheela Rajesh Brahmbhatt (Second Defendant) Santosheema Pty Limited (Third Defendant)
FILE NUMBER(S):	2734 of 2008
COUNSEL:	S J Walsh (Plaintiff) B K Ralston (First, Second and Third Defendant)
SOLICITORS:	Legal & Company Solicitors (Plaintiff) B Hayward & Co (First, Second and Third Defendant)

JUDGMENT

1 HIS HONOUR: These proceedings arise out of events leading to, including and following the auction sale of a property at 183 Queens Rd, Connells Point, ("the property") on 1 March 2008. On that date, the first defendant, Dr Rajesh Brahmbhatt ("Rajesh"), and the second defendant, his wife, Dr Sheela Brahmbhatt ("Sheela") signed a document purporting to be a contract for the sale of the property from the plaintiff, Mr Zois Margaris. The plaintiff sues the first and second defendant for the amount of the deposit payable under the contract, and the third defendant, a company controlled by Rajesh, for the amount of a cheque issued by it in favour of the plaintiff's agent for an identical sum. The defendants have cross-claimed, alleging that the plaintiff and his agents have engaged ion misleading or deceptive conduct. As I understand it, I should consider the cross-claim only in the event that I find for the plaintiff on the claim.

Issues

2 The issue for decision in this case is primarily whether the plaintiff is entitled to recover the amount claimed from any of the defendants. This, in turn, depends upon:

- whether the document signed by the defendants was a contract binding on them;
- if the contract was binding, are the defendants entitled to avoid it --
- for mistake,
- for fraudulent misrepresentation by the plaintiff or his agents,
- for innocent misrepresentation by the plaintiff or his agents;
- whether the defendants are entitled to relief under the provisions of the Contracts Review Act 1980.

Factual background

3 The plaintiff purchased the property in or about July 2004. At that time, erected on the property were a brick house, close to the waterfront on the Georges River, which was divided into three residential flats, and a timber building containing garages and another flat. At…