Nifsan Developments Pty Ltd v Buskey

Case [2011] QSC 314

SUPREME COURT OF QUEENSLAND

CITATION:

Nifsan Developments Pty Ltd v Buskey & Anor [2011] QSC 314

PARTIES:

NIFSAN DEVELOPMENTS PTY LTD
(ACN 010 795 561)
(plaintiff)
v
MARCUS DAVID BUSKEY
(first defendant)
and
RAAKEL ELISABETH TUOMINEN
(second defendant)

FILE NO:

6482 of 2010

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

10-13 October 2011

Supplementary written submissions 19 and 20 October 2011

JUDGE:

Applegarth J

ORDERS:

1.    The plaintiff’s claim is dismissed.

2.    Judgment for the defendants on their counterclaim.

3. Order pursuant to s 87 of the Trade Practices Act 1974 (Cth) that the contract entered into between the plaintiff and the defendants on or about 12 February 2008 to purchase proposed Lot 3469 on SP 211908 in the Parish of Gilston County of Ward be declared void.

4.    Order that the initial deposit of $1,000 and the       balance deposit of $78,750, together with all interest       that has accrued thereon, be paid to the defendants.

5. Order that the plaintiff pay to the defendants the amount of $3,000 together with interest of $1,110 pursuant to s 47 of the Supreme Court Act 1995.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – MISLEADING OR DECEPTIVE CONDUCT GENERALLY – MISLEADING OR DECEPTIVE: WHAT CONSTITUTES – where defendants contracted to purchase apartment off the plan – where apartment was located on ninth-storey of a master-planned residential development and had views of a lake and to the horizon – where the plaintiff seller knew that the buyers were seeking privacy and unrestricted views – where seller’s employed salesman represented that the apartment would have unimpeded views of lake and horizon – where seller had policy of not informing sales staff of its development plans – where seller, at the time of the representations, had lodged application to develop the area in front of the subject apartment to eleven storeys – where contract contained “entire agreement” clause – whether seller had reasonable grounds for making representations about future matters – whether seller’s representations as to views and silence as to application constituted misleading and deceptive conduct

Trade Practices Act 1974 (Cth), s 51A, s 52, s 87

Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 cited
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 followed
Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 85 cited
Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 cited
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640; [2004] HCA 54 cited
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; [2002] HCA 41 cited
Manwelland Pty Ltd v Dames & Moore Pty Ltd (2001) ATPR 41-845; [2001] QCA 436 cited
Mirvac Queensland Pty Ltd v Tyan…

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Details
AGLC
Nifsan Developments Pty Ltd v Buskey [2011] QSC 314
Case
[2011] QSC 314
Decision Date

CaseChat Overview and Summary

Nifsan Developments Pty Ltd brought an action against the Buskeys for the specific performance of a contract to purchase an apartment off the plan. The defendants counterclaimed for the contract to be set aside on the basis that it was induced by the plaintiff’s misleading or deceptive conduct. The plaintiff knew that the Buskeys were seeking privacy and unrestricted views when they contracted to purchase the apartment. The apartment was to be located on the ninth storey of a master-planned development and was marketed as having views of a lake and to the horizon. The salesman employed by the plaintiff made representations to the Buskeys that the apartment would have unimpeded views of the lake and horizon. The plaintiff had a policy of not informing its sales staff of its development plans. At the time of the representations, the plaintiff had lodged an application to develop the area in front of the subject apartment to eleven storeys. The contract contained an entire agreement clause.

The court had to determine whether the plaintiff had reasonable grounds for making representations about future matters and whether the plaintiff’s representations as to views and silence as to the application constituted misleading or deceptive conduct. The court found that the plaintiff’s conduct constituted misleading or deceptive conduct. The court held that the defendants’ contract for the purchase of the apartment was induced by the plaintiff’s misleading or deceptive conduct and that the contract was therefore voidable. The court found that the entire agreement clause did not prevent the defendants from relying on the misleading or deceptive conduct. The court held that the contract was void and that the deposit should be returned to the Buskeys with interest. The court ordered that the contract be declared void, that the deposit be returned with interest, and that the Buskeys be awarded $3,000 in damages together with interest.

Orders

Orders of the court

1. The plaintiff’s claim is dismissed.

2. Judgment for the defendants on their counterclaim.

3. Order pursuant to s 87 of the Trade Practices Act 1974 (Cth) that the contract entered into between the plaintiff and the defendants on or about 12 February 2008 to purchase proposed Lot 3469 on SP 211908 in the Parish of Gilston County of Ward be declared void.

4. Order that the initial deposit of $1,000 and the balance deposit of $78,750, together with all interest that has accrued thereon, be paid to the defendants.

5. Order that the plaintiff pay to the defendants the amount of $3,000 together with interest of $1,110 pursuant to s 47 of the Supreme Court Act 1995.

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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