Nifsan Developments Pty Ltd v Buskey

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.