Pan Urban Watergate Pty Ltd v Graham

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…