Pan Urban Watergate Pty Ltd v Graham

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
COMMERCIAL LIST

No. 2001 of 2005
F5766

PAN URBAN WATERGATE PTY LTD
(ACN 090 967 614)
Plaintiff
v
WILLIAM GRAHAM First Defendant
and
PETER GRAHAM Second Defendant
AND BETWEEN
WILLIAM GRAHAM Plaintiffs by Counterclaim
and
PETER GRAHAM
v
PAN URBAN WATERGATE PTY LTD
(ACN 090 967 614)
Defendant by Counterclaim
v
COLLIERS INTERNATIONAL (VICTORIA) PTY LTD
(ACN 005 032 940)
Third Party by Counterclaim

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JUDGE:

WHELAN J

WHERE HELD:

Melbourne

DATE OF HEARING:

16-17, 21, 23 and 28-30 November 2005

DATE OF JUDGMENT:

22 December 2005

CASE MAY BE CITED AS:

Pan Urban Watergate v Graham

MEDIUM NEUTRAL CITATION:

[2005] VSC 505

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CONTRACTS – Failure to settle “off the plan” contract of sale – Claim for specific performance – Counterclaim alleging uncertainty, contravention of the Domestic Building Contracts Act 1995, and a contractual right to terminate the contract – Contract not uncertain – Contract falls outside the Domestic Building Contracts Act 1995 – No contractual right to terminate the contract on the facts.

TRADE PRACTICES – Misleading and deceptive conduct – Alleged representations by the plaintiff’s agent – Section 52 of the Trade Practices Act 1974 (Cth) and s 9 of the Fair Trading Act 1999 – Representations as alleged not established.

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APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr R C Macaw QC and Mr M R Pearce SC Norton Gledhill
For the Second Defendant Mr A J Laird Jerrard & Stuk
For the Third Party by Counterclaim Mr R B C Wilson Phillips Fox

HIS HONOUR:

Introduction

  1. On 12 December 2001, the secondnamed defendant, Mr Graham, entered into a contract of sale with the plaintiff (“Pan Urban”).  The subject matter of the contract was an apartment in a development named Watergate in the Docklands area of Melbourne.  At the time the contract was signed the development had not been built.  The purchase was of a type sometimes referred to as “off the plan”. 

  1. In late 2004, Pan Urban advised that settlement under the contract would take place in early February 2005.  In early 2005, Mr Graham’s solicitors, Jerrard & Stuk, asserted that the contract of sale had been terminated.  Pan Urban’s solicitors, Norton Gledhill, gave a notice of default on 16 February 2005.  Pan Urban then issued this proceeding seeking specific performance. 

  1. Mr Graham resists the claim for specific performance and counterclaims against Pan Urban, alleging, in substance, that:

(a)representations were made to him by Pan Urban’s agent, Mr Justin Bahen, that were misleading and deceptive in contravention of s 52 of the Trade Practices Act 1974 (Cth) and s 9 of the Fair Trading Act 1999, and which entitle him to relief, including orders under s 87 of the Trade Practices Act 1974 (Cth) and s 158 of the Fair Trading Act 1999, and damages;

(b) the contract contravened the Domestic Building Contracts Act 1995, entitling him to avoid it;

(c)the apartment as constructed differs, in respects that are material and…

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Details
Case
[2005] VSC 505
Decision Date

CaseChat Overview and Summary

The dispute between Pan Urban Watergate Pty Ltd and Graham was brought before the court to address the failure of the defendant to settle an "off the plan" contract of sale. The plaintiff sought specific performance of the contract, while the defendant raised a counterclaim alleging uncertainty in the contract, contravention of the Domestic Building Contracts Act 1995, and a contractual right to terminate the contract. The court was tasked with determining the validity of the contract and the legitimacy of the counterclaims.

The primary legal issues were whether the contract was uncertain, if it fell within the scope of the Domestic Building Contracts Act 1995, and if the defendant had a contractual right to terminate the contract. The court had to examine the terms of the contract and the legislative provisions to resolve these questions. Additionally, the court needed to assess whether the plaintiff's agent made any misleading or deceptive representations, potentially contravening s 52 of the Trade Practices Act 1974 (Cth) and s 9 of the Fair Trading Act 1999.

After thorough examination, the court found that the contract was not uncertain and did not contravene the Domestic Building Contracts Act 1995. The court further ruled that there was no contractual right for the defendant to terminate the contract based on the specific facts presented. Consequently, the plaintiff's claim for specific performance was upheld, and the defendant's counterclaims were dismissed. The court's decision confirmed the enforceability of the contract and the absence of any misleading or deceptive conduct by the plaintiff's agent.

The final orders of the court mandated that the defendant settle the contract of sale as per the terms agreed upon, and the counterclaims were dismissed without any costs awarded to the defendant. The ruling reinforced the importance of contractual clarity and adherence to legislative requirements in real estate transactions.

Orders

Orders of the court

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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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