McEntee v SJ Berry Pty Ltd

In the matter of McEntee v SJ Berry Pty Ltd, the applicants, Ms McEntee and Ms Deborah McEntee, sought relief against the respondents, including SJ Berry Pty Ltd and its director, Ms Berry, as well as the Vendors, Mr Kloosterman and Ms Rosewell. The dispute arose from the purchase of a property by the applicants, with claims of misrepresentation and breach of contract concerning boundary misalignment and a structurally unsound Studio. The applicants alleged that the respondents misled them about the property's condition, resulting in financial loss. The primary legal issues centred around whether the respondents' conduct constituted deceit, fraudulent misrepresentation, misleading or deceptive conduct under the Australian Consumer Law, and breach of contract. Additionally, the court had to determine the appropriate apportionment of liability and damages under relevant statutes.

The court found that the applicants had successfully established their claims. Regarding the Encroachment Issues, the court held that the respondents' conduct amounted to deceit and fraudulent misrepresentation. The respondents were also found to have contravened sections 18 and 30 of the Australian Consumer Law through misleading or deceptive conduct and negligent misrepresentation. Concerning the Studio, the court ruled that the respondents breached the contractual warranties regarding the property's condition and structural integrity. The court concluded that the respondents were liable for the misrepresentations and breaches, leading to the applicants' losses. In terms of damages, the court applied section 137B of the Competition and Consumer Act 2010, reducing the recoverable damages for contravention of section 18 by the respondents. The court also considered the apportionment of liability under section 87CD of the Competition and Consumer Act 2010, determining the proportion of liability each respondent bore for the damage claimed. The court directed that the respondents' liability be apportioned according to their respective degrees of fault and responsibility.

In conclusion, the court ordered that the respondents were liable for the applicants' losses due to deceit, fraudulent misrepresentation, misleading or deceptive conduct, and breach of contract. The damages were adjusted according to statutory provisions, and the liability was apportioned among the respondents based on their respective contributions to the applicants' losses. The court further directed that the parties be heard on the form of orders sought, including interest and costs.