Remta v Osprey Property Pty Ltd
[2011] FCA 786
•15 July 2011
FEDERAL COURT OF AUSTRALIA
Remta v Osprey Property Pty Ltd [2011] FCA 786
Citation: Remta v Osprey Property Pty Ltd [2011] FCA 786 Parties: PETER JOHN AUGUSTIN REMTA, LAWRENE HILLARY REMTA, MARCUS AUGUSTIN DE VERNY REMTA AND JONATHAN HOWARD AUGUSTIN DE VERNY REMTA v OSPREY PROPERTY PTY LTD ACN 105 740 592 File number: WAD 140 of 2008 Judge: NORTH J Date of judgment: 15 July 2011 Legislation: Trade Practices Act 1974 (Cth), ss 51A, 52 Date of hearing: 15, 16 and 17 December 2010 Place: Perth Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 110 Hearing 15 and 16 December 2011
Counsel for the Applicant:The Applicant appeared in person Hearing 17 December 2011
Counsel for the Applicant:Mr C Williams Solicitor for the Applicant: Solomon Brothers Counsel for the Respondent: Mr T Coyle Solicitor for the Respondent: Lavan Legal
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 140 of 2008
BETWEEN: PETER JOHN AUGUSTIN REMTA, LAWRENE HILLARY REMTA, MARCUS AUGUSTIN DE VERNY REMTA AND JONATHAN HOWARD AUGUSTIN DE VERNY REMTA
ApplicantsAND: OSPREY PROPERTY PTY LTD ACN 105 740 592
Respondent
JUDGE:
NORTH J
DATE OF ORDER:
15 JULY 2011
WHERE MADE:
MELBOURNE
THE COURT DECLARES THAT:
1.The contract of sale purportedly made by the first named applicant and the respondent on 16 August 2007 for the purchase of Unit 15 in the Waterline development at Halls Head, Mandurah, Western Australia was void ab initio.
THE COURT ORDERS THAT:
2.The respondent pay the first applicant the sum of $153,000 by way of return of the deposit paid to it pursuant to the said contract.
3.The respondent pay the first applicant interest on the said sum of $153,000 at the rate of 6 per cent per annum from 16 August 2007 until this day.
4.The respondent pay the applicants’ costs of the proceeding.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 140 of 2008
BETWEEN: PETER JOHN AUGUSTIN REMTA, LAWRENE HILLARY REMTA, MARCUS AUGUSTIN DE VERNY REMTA AND JONATHAN HOWARD AUGUSTIN DE VERNY REMTA
ApplicantsAND: OSPREY PROPERTY PTY LTD ACN 105 740 592
Respondent
JUDGE:
NORTH J
DATE:
15 JULY 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
The applicants claim that the respondent engaged in misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act1974 (Cth) (the Act).
The first named applicant Peter John Augustin Remta (Mr Remta), entered into a contract with the respondent to purchase Unit 15 in the Waterline luxury apartment development at Halls Head, Mandurah, Western Australia, for $1,535,000. The contract was signed by his son Jonathan, the fourth applicant, on 26 June 2007. It named his wife, the second named applicant (Mrs Remta), and his sons, the third and fourth named applicants, as nominees. The contract was executed by the respondent on 16 August 2007. Mr Remta paid a deposit of $153,000 under the contract. Construction commenced in August 2006 and was completed in May 2008. Consequently the purchase of Unit 15 was off the plan at a time when construction had not yet been completed.
The respondent was the developer of the Waterline development. The development had a ground floor area and three further stories. It had 15 two or three bedroom apartments. each with two bathrooms, and three exclusive penthouses. Part of the ground floor was shown on the plans as “café / deli”. The case involves representations about the use of this commercial area.
The respondent initially engaged Colliers International as the selling agents for the development. Marketing began in April 2006. Colliers International remained the selling agents until September 2007. Mr Peter Copley was an Associate Director of Colliers International. He was the lead sales person responsible for the sales campaign and made the alleged representations.
THE ALLEGED REPRESENTATIONS
Mr Remta said that Mr Copley told him before he entered into the contract that the ground floor commercial area would be used for a café / deli, that there would be no licensed liquor trading from the area, that the business would be a small scale operation and that it would fit in with the character of the building as a luxury apartment development. Mr Remta said that he was induced by the representations to enter into the contract.
In fact, the respondent sold the commercial area to a company operated by Mr Michael Brown for use as a Dome restaurant which holds a restaurant licence and sells alcohol to patrons with their meals. Contrary to the representations, the Dome business is a large restaurant not a café / deli. It sells alcohol under a restaurant licence. It is not small scale and because it is noisy and busy it does not fit in with the character of the building as a luxury apartment development.
WITNESSES AT THE TRIAL
At the trial, evidence was given by the applicants. This evidence, which will be referred to later in these reasons, described the representations made by Mr Copley on behalf of the respondent. Unusually, for a case such as the present, the agent who made the representations, Mr Copley, gave evidence about the representations which supported the applicants’ case.
The respondent called two witnesses. Mr Brown gave evidence about the Dome restaurant which he operates. Mr Peter Starr was the project manager for the Waterline development from March 2007. He gave evidence about the dealings with the applicants after that time. His predecessor as project officer was Mr Jacob Vis. Mr Vis did not give evidence, although he was present on one of the occasions when the representations were made.
BACKGROUND
For 25 years, Mr and Mrs Remta have had a holiday home at Halls Head about 200 metres from the site of the Waterline development. From 2003 to 2008 they used this house as their primary residence. They know the area well.
The site of the development is opposite Doddies Beach, one of the main beaches in the Mandurah region. Some years before the development there was a store on the site which started to sell alcoholic beverages. The area became very noisy as people bought alcohol and drank it in the vicinity.
About nine years ago the site was purchased for redevelopment. The redevelopment then proposed included a tavern type establishment. The proposal encountered strong local opposition, including a petition to the City of Mandurah by local residents against the proposal.
Then, in about 2006, the respondent purchased the site.
THE MAKING OF THE REPRESENTATIONS
The Evidence of Mr Remta
Mr Remta saw advertisements for the development and noticed a sales office set up in the old store. In May 2006, he went to the office and met Mr Copley. He had known Mr Copley for many years but had not seen him for quite some time. Mr Copley showed Mr Remta the plans of the development. What then occurred was described in Mr Remta’s witness statement thus:
15.During that meeting, I said words to the effect what was going to be in the commercial retail space. Mr Copley said words to the effect that it would be in the way of a café / deli format run by a recognised operator. Mr Copley’s statement accorded with what I observed on the plans that he had shown me.
16.I specifically recall during this discussion saying words to the effect will there be licensed premises within the development. Mr Copley said words to the effect that there would be no licensed liquor trading and there was no suggestion by the developer of that happening.
Following this discussion, and after being told that there were only one or two apartments left, Mr Remta signed an expression of interest document for Unit 10.
Then, on 17 August 2006, Mr Copley came to Mr Remta’s house with some further documents. Mr Remta’s witness statement recorded:
19.During that meeting, I said to Mr Copley words to the effect has anything changed on the plans you showed me last time, particularly what was going to go into the commercial portion of the development. Mr Copley said words to the effect that nothing had changed from what he had said to me previously.
In reliance on that conversation, Mr Remta made an unconditional offer for Unit 10. This unit was on the side of the building. Mr Remta settled for this unit as the beach facing units had all been taken. The respondent accepted Mr Remta’s offer on 7 September 2006.
Then, in November 2006, Mr and Mrs Remta and their son, Marcus, went to a meeting at the Nautilus Apartments in Rockingham to discuss various aspects of the finishes to the unit. Mr Copley and Mr Vis were present, as was Ms Brooke Lundy from Scott Wilson Design who was responsible for interior finishes. Mr Remta described in his witness statement part of what occurred:
24.At this meeting I said words to the effect had anything changed in the development. Mr Copley said that 2 or 3 minor things had changed. I then said words to the effect what was happening with the commercial retail component of the development. Mr Copley said words to the effect that it would be a café / deli as previously stated. Mr Copley then said words to the effect No, Peter, there will be no licensed liquor trading.
Mr Vis was present when this was said.
In February 2007, Mr Copley contacted Mr Remta and said that Unit 15 had become available. Unit 15 is on the second story directly above the commercial area. He said that the deposit on Unit 10 could be transferred to Unit 15, but there would be more to pay because Unit 15 is on the front of the building overlooking Halls Head Parade with uninterrupted ocean views. On 16 February 2007, Mr Remta wrote to Mr Copley saying that he wished to purchase Unit 15. Mr Remta described the next step in his witness statements as follows:
30.In April or early May 2007, I spoke with Peter Copley about unit 15. During that discussion, I said words to the effect that I had heard that a café was definitely going into the commercial part of the complex and that there were negotiations with a national franchise operator for that purpose. Since that apartment was directly above the commercial retail component of the development, will there be any licensed premises. Mr Copley said no.
31.I subsequently spoke to Mr Vis by telephone on a number of occasions. On each occasion, I said words to the effect what are the details of the commercial retail component. On each occasion, he said words to the effect that it would be a café and details will be made available in the near future.
Mr Remta reviewed the proposed strata title by-laws for Unit 10, including by-law 22 which provided:
Liquor licence
(1)If the proprietor, occupier or other resident of the retail lot applies for, transfers or obtains a liquor licence then this must be limited to the serving of alcohol to patrons who are seated at tables and consuming meals.
Mr Remta then confirmed with Mr Copley that the by-laws remained the same for the purchase of Unit 15.
On 25 June 2007, Mr Remta made an offer for Unit 15 which was accepted by the respondent on 16 August 2007.
In the course of cross-examination, Mr Remta was asked by the Court to explain his concerns at the time he entered into the contract for Unit 15. He responded:
Apartment 15 is on the front – the beach front and has views to the west, north and a little bit to the east, which is unusual for the southern part of Western Australia goes over a bay. It is a lovely area. Unfortunately it has a toilet block in front, but leaving that aside – seriously a very large council toilet block for the beach, but it is directly – it’s the next story up – not the immediate story - - -
… And the whole idea was that this was something that was worth over one and a half million dollars and we were going to use it partially in retirement and – even though – live there rather than our house, that it was a luxury apartment and that it would have peace and quiet. And this has been very much in my mind even generally with the – or our collective minds for that matter, but certainly in my mind because when the first development proposals were made for that site, well before Waterline itself, there was a lot of local objection to what was going in there. And people were very vocal about it. It was going to be much higher than proposed and have, sort of, various facilities, including the liquor store and including a licensed restaurant. And that all eventually was refused by the local authority because of the outcry from local residents. There’s nothing commercial around there and – I’m trying to sort of give you an impartial picture as it is. The apartment development itself is of a very high standard and grade – should probably not even have a Dome underneath. At best it was something like – there’s a complex out – quite a good luxury complex near the river at Burswood where the casino is – somewhere where I would like to be, but they have a smaller café/deli like that, which is relatively small, quiet, unobtrusive.
On 30 November 2007, the respondent sent Mr Remta a letter which included a reference to by-law 22, which in part read:
Since this by-law was drafted, the Small Bar Licence has been introduced by the Department of Racing, Gaming and Liquor which allows for a maximum of 120 people on the premises, does not allow the sale of packaged liquor and restricts trading hours. It is also significant to note that nightclub, hotel and bottleshop licences remain prohibited under the amended by-laws.
The Small Bar Licence has been created to encourage the establishment of intimate licensed venues that would be ideal for Waterline and we have amended this by-law to potential operators this option. The amended by-law is noted below for your information:(1)If any of the commercial/retail lots apply for, transfer or obtain a liquor licence then this must be limited to a Restaurant or Small Bar licence.
(2)Any part of a commercial / retail lot including the exclusive use area (or the Alfresco Area) may be used for the purposes of serving alcohol in accordance with the terms of the approved liquor licence.
(3)A proprietor or tenant shall not be permitted to make application for a hotel, nightclub or bottle shop liquor licence.
Mr Remta was overseas at the time the letter was sent.
Then, in his witness statement, Mr Remta described a conversation with Mr Brown as follows:
40.In about Christmas 2007 and subsequently, I had 2 or 3 conversations with Mr Michael Brown, who I knew to be the owner of the existing Dome restaurants in the Mandurah area. He said words to the effect that the commercial premises at the site would be a Dome restaurant / café with fully licensed trading, including having tables serving alcohol on the outside terrace.
On 19 February 2008, Mr Remta replied to the respondent’s letter of 30 November 2007, in part as follows:
To begin with, I note that you are now attempting to alter the by-laws of the intended strata company to extend the liquor licensing arrangements for the downstairs part of the development.
From what is proposed it is obvious that there will be a bar within the premises as well as alfresco dining and drinking, both of which are completely contrary to my understanding of the original concept of the development.
As these proposals would allow for the public consumption of alcohol within the bar area and outside the development, the noise and nuisance that this will cause, particularly during the summer, would be completely unacceptable to residents of the development.
I have made some enquiries regarding the nature of the activities that could be conducted under the proposed liquor licence (which I understand will be taken up by the Dome Group as the proposed purchaser of the downstairs commercial area) and it is quite obvious that this will detract from the overall residential status of the development and have a marked detrimental effect on the value of the individual apartments.
…
Finally, I reserve all my legal rights so far as my purchase of the apartment is concerned and if necessary will terminate the contract should it prove that I have been misled in any way with regard to my proposed purchase.
On 3 April 2008, all the applicants met Mr Starr on site to discuss the progress of the variations previously discussed. In his witness statement Mr Remta described the conversation which dealt with the use of the commercial area as follows:
43.During the conversation I said words to that effect that I know it’s going to be a Dome restaurant in the commercial area. He said words to the effect that it could be but it would still be very quiet commercial use of that area and complimentary to the high class luxury nature of the development.
44.I said words to the effect to Peter Starr what was happening with the commercial premises and will there be licensed liquor trading.
45.Mr Starr simply said words to the effect that you’ve been told what is happening with the commercial premises. I said words to the effect that I was far from satisfied with the letters that had been sent out. Mr Starr then said words to the effect that it would be a café with an outside dining and drinking area.
46.I said words to the effect that this was contrary to the initial contract.
47.Marcus said to him words to the effect that if there were any variations we would seriously reconsider our position in purchasing as that would dramatically alter what had been represented or what we had initially agreed to as far as our purchase was concerned.
On 13 May 2008, the solicitors for the applicants wrote to the solicitors for the respondent as follows:
My client has made various concerns in regard to the finalisation including the matter of the furnishings and the in-built cupboards being inappropriately positioned.
However the major concern to my client is the foreshadowed location of a licensed Dome Coffee Shop at the ground floor of the premises.
I am instructed that this represents a massive departure from the selling representations made available to my clients. Further its inclusion in the premises may well amount to the Vendor/Selling Agent engaging in misleading and deceptive conduct contrary to the Trade Practices Act, taking into account section 51A of the Trade Practices Act.
On 15 May 2008, the solicitors for the respondent answered that the respondent could not reply without further information. On 23 May 2008, the solicitors for the respondent wrote to the solicitors for the applicants anticipating settlement of the purchase on 6 June 2008. On 30 May 2008, the solicitors for the respondent confirmed that 6 June 2008 had been fixed for the date of settlement.
When settlement did not occur on 6 June 2008, the respondent issued a default notice against the applicants.
On 26 June 2008 the applicants commenced these proceedings.
Then, on 25 July 2008, the respondent issued a Notice of Termination and Forfeiture of Deposit under the contract on the basis that the applicants had not settled the purchase on the nominated day. On 30 July 2008, the applicants issued a notice under the contract disputing the respondent’s entitlement to forfeit the deposit on the grounds of the contravention of s 52 of the Act which has been raised in the proceedings.
The Evidence of Mr Copley
Mr Copley’s evidence supported Mr Remta’s evidence concerning the making of the representations and their content. In relation to the initial discussions, Mr Copley said that Mr Remta raised with him the nature of the use of the commercial area nominated in the plans as café / deli. Mr Copley’s witness statement recorded:
He was very concerned about the premises being used for any other commercial activity as Peter lived only a block away and he was well aware of the current behavioural situation as the commercial development on that site included a liquor store which attracted a lot of patrons from both the surrounding area and the opposite beach.
This combined activity resulted in anti social behaviour from the drivers of vehicles and created a very busy and noisy area particularly during summer.
There was certainly no suggestion by either him or me that it would in any way involve licensed premises for liquor – in fact my recollection was that it was clearly pointed out that when completed there would be no licensed liquor trading with the Waterline development, as the liquor licence was being moved elsewhere off site.
In relation to the meeting at the Nautilus Apartments, Mr Copley said that Mr Remta, his wife, and son, Marcus, asked about progress in securing a café operator for the commercial area. Mr Copley told them that he presumed that the respondent was still working with the Dome operators.
Mr Copley referred in his witness statement to a number of other discussions which occurred prior to the conclusion of the contract for Unit 15 with Mr Remta and his sons about the development and the operator of the commercial area. He said:
On all occasions I pointed out that I understood it would be a coffee shop and if not a Dome then another of the franchised chains.
This was based on my knowledge and discussions with the various persons from Cedar Woods [the parent company of the respondent] and Osprey.
I was aware that the proposed by-laws for the strata company for the Waterline development simply stated that if an owner or occupier of the commercial portion applied for and obtained a liquor licence then it would only be limited to serving alcohol to patrons who were seated at tables and consuming meals but even this concept was never raised with me and a bar was specifically excluded in the schedule 2 by-laws.
During the selling period, at no stage was it ever mentioned by me or anyone from Cedar Woods that there would be any form of alcohol served in any part of the Waterline Apartments.
Mr Copley described the general nature of these discussions in his witness statement as follows:
I explained to Peter and his family that the use of the commercial part of the Waterline development would be a café, as the franchised owners of the Dome café in Mandurah had been in negotiations with Cedar Woods from prior to the selling campaign and this activity would fit in with the overall ambience and amenity of a high standard residence in a highly sought after area.
During cross-examination, in answer to a question from the Court, Mr Copley explained the way he marketed the Waterline development. He said:
This was proposed to be a high end development. The prices certainly reflected that and the designs we thought were rather good. The coffee shop downstairs was intended to be, as we were told, a coffee shop. Just that. It went further insofar as I think its clause 19 of the by-laws, which enabled the strata company to almost dictate how the alfresco area was allowed to do business. And even to the extent of the hours they could operate. So there was – in my view, there was always that intention to have a very nice coffee shop there that complimented rather than dominated the building.
Mr Copley explained that, in his usage, a coffee shop does not sell alcohol. In cross-examination he said that he understood at the time of the discussion with Mr Remta that Dome coffee shops did not sell alcohol.
In cross-examination the following exchange occurred:
But your – I think what I am getting at is this: that the concept which you promoted to Mr Remta was one where, in effect, there would be a quiet, sedate coffee shop? – Correct.
Coffee/deli? – Yes
And that the way you envisaged it: that that outlet would not sell liquor at all? – Correct.
The Evidence of Mrs Remta
The evidence of Mrs Remta as to the discussions with Mr Copley and Mr Vis was substantially the same as Mr Remta’s evidence, although her witness statement tended to speak of the meetings generally rather than by reference to specific occasions. Both in her witness statement and cross-examination, it was clear that the concern expressed in the discussions which lead to the representations related to the noise which she thought would be generated by licensed premises. For instance, in her witness statement Mrs Remta said in relation to one of the meetings with Mr Copley:
Mr Copley said words to the effect that there would be no liquor licence at the development. I said words to the effect that one of the major concerns I had was what would happen with the commercial part or component on the ground floor of the development as what we were looking for was an attractive and higher standard apartment which would be relatively free of noise and interruptions. Mr Copley said words to the effect that the commercial component would be occupied by a café/deli style store.
The Evidence of Jonathan Remta
In his witness statement Jonathan Remta referred to a meeting with Mr Copley in June 2007 at which he asked Mr Copley about the use of the commercial area. Mr Copley said that the development would not have a liquor store or any other similar licensed trading. Mr Copley said words to the effect that it would be a café / deli with no licensed liquor trading.
Jonathan Remta also referred to a meeting in March 2008 (which Mr Remta said occurred on 3 April 2008) on site with his parents and brother, Marcus, when they met Mr Starr. In his witness statement Jonathan described how his father and brother asked Mr Starr whether there would be any licensed liquor trading. Mr Starr replied that it was as had previously been proposed and that we should have no concerns. Mr Remta asked Mr Starr again and was reassured again. The witness statement then recorded:
19.My father said words to the effect that he believed it was a Dome restaurant which may have small bar trading and if that were the case that this was a major variation and we would probably have to withdraw from the contract because of what had been misrepresented to us.
20.Mr Starr said words to the effect that there was nothing to worry about.
21.Mr father said to Mr Starr words to the effect that prior to signing the contract he was assured by the sales people that there would be no licensed trading and that he was therefore surprised when Mr Starr had written to him in December 2007 pointing out that there would be variations in the by-laws allowing for a small bar licence.
22.Marcus also said words to Mr Starr that were similar in effect to that set out in paragraph 21 above.
23.Mr Starr responded to both my father and Marcus by saying words to the effect that we should have no concerns.
In repeated cross-examination on the issue Jonathan Remta responded that Mr Copley said that “there was no liquor licensing allowed at the premises”, and “he [Mr Copley] assured there was no licence allowed now and didn’t believe that that was going to be a matter in future”.
In cross-examination, Jonathan Remta said that he knew Dome was a potential candidate for occupancy of the commercial area, but at that point he was not aware that Dome had a licence. He thought at the time that Dome was a coffee shop.
Jonathan Remta was cross-examined about Mr Starr’s version of the meeting with him. Jonathan Remta recalled, when it was put to him, that Mr Starr said that he could not reveal the name of the purchaser of the commercial area for privacy reasons. He said that his recollection of the discussion was fragmentary because he was walking with his fiancé ahead of Mr Remta, Marcus Remta and Mr Starr. He did not recall Mr Starr saying that the operator would be licensed or would hold a restaurant licence. But he recalled his father’s reaction when the subject of the proposed change in the by-laws was mentioned. Jonathan Remta said:
I remember my father asking about the use – this – the bar licence, or the restaurant licence. I can’t remember exactly what word he used, whether it was a bar licence or restaurant licence. I remember my father asking, you know, there are still huge concerns as to the use of the licence and if there is that there’s not going to be a licence there. And I can remember Mr Starr saying that he believed that there wasn’t going to be a licence there. Or that – there was words to the effect that as previously planned he didn’t think that there was anything there, because I can remember my father being quite, I suppose, stern would be the word, you know, in his concern when he asked that question.
The Evidence of Marcus Remta
In his witness statement Marcus Remta described a meeting he had with Mr Copley in May 2006. It appears that the other applicants were not present. Marcus Remta asked Mr Copley what was going into the commercial area and Mr Copley replied that it would be a café / deli run by a recognised operator. Marcus Remta asked whether it would be similar to the outlet run by Christopher Hillier at the Burswood development and Mr Copley said it would be a similar concept. Marcus Remta asked if there would be licensed premises in the development and Mr Copley replied that there would be no licensed liquor trading. Marcus Remta said that as a result of these discussions Mr Copley sent a registration form and plan to him and the offer to purchase Unit 10 was made.
In cross examination Marcus Remta was asked about the Christopher Hillier business and he said:
Well, Mr Hillier’s business is a small deli/café style business where you actually purchase milk, bread, gourmet sandwiches, have a coffee with a newspaper which is the style of business that actually sits at Burswood which was what – was told that was going to be a similar style of a deli/café business that was going into Waterline.
Marcus Remta then referred to the meeting at Rockingham on 16 November 2006, when Mr Copley, Mr Vis, and Ms Lundy were present. Marcus Remta stated in his witness statement that he and his father and mother all asked what was happening with the commercial area. Mr Copley replied that it would be a café / deli as previously stated and there was to be no licensed liquor trading. Mr Vis said words to similar effect.
Marcus Remta referred in his witness statement to a conversation with Mr Copley around the time the offer for Unit 15 was made. It is not clear that any of the other applicants were present. Marcus Remta said that he wanted to be sure there would be no licensed premises below Unit 15. He referred to problems with the Hudson Bar in Kings Street, Perth and with The Brewery in Mounts Bay Road. In cross examination he elaborated his concerns arising from these other situations which had arisen in Perth. He said:
HIS HONOUR: Was this issue [no licensed liquor trading] important to you? – Yes, it was because in previous years there had been situations with re-developments in Perth where they had been licensed premises under several apartment buildings and these had caused a grave effect for the people that were living in the apartment buildings. One was, of course, that I mentioned was The Old Brewery and the other one was also Hudson’s Bar in King Street above the King Street residential complex. And that’s why, as soon as we saw that there was a commercial component in the building, we specified specifically what was going in because it would alter the ultimate outlook of what was going to be the building’s, you know, style, lifestyle and things like that. And, you know, one of the major reasons why we had looked at this was a possibility of a retirement apartment for my parents so why would they want to be above a licensed venue?
Marcus Remta referred in his witness statement to the meeting on site in late March 2008 (which Mr Remta said occurred on 3 April 2008) with the other applicants and Mr Starr. Marcus Remta said that he heard his father ask Mr Starr several times what was happening with the commercial area and whether there would be any licensed liquor trading there. The witness statement continued:
31.Mr Starr said words to the effect that it was as previously proposed and that there should be no concerns. My father and I both said words to the effect that if there were any variations we would seriously reconsider our position in purchasing as that would dramatically alter what we had initially agreed to as far as our purchase was concerned.
32.I remember that either my father or I said to Mr Starr words to the effect that we believed it was a Dome that was going in there. Mr Starr said words to the effect it could be but it would still be a very quiet commercial use of that area and complimentary to the high class luxury nature of the development.
In cross examination, Marcus Remta explained that his concern about a liquor licence at Waterline arose from his knowledge of the problems at the site which came from living nearby for many years. In cross examination it was suggested to him that Mr Copley’s assurances about licensed trading were limited to the removal of the old liquor store licence but went no further than that. Marcus Remta responded:
No, he actually said the liquor store licence was being removed and that there was not going to be a – not going to be a licensed premises on the development.
Then it was suggested that Mr Copley was simply reporting on the then current state of the development of the commercial area. Marcus Remta disagreed and said:
You understand from that that he’s reporting to you his then current understanding about whether or not the operator might want to seek any liquor licence? – No. From what I understood, there was not going to be a liquor licence at all.
He was simply reporting to you on his current information about the Dome people? – Yes. Yes. There had never been anything discussed, from what I understood to be, that there would be liquor licence back on the premises at any time, for whatever reason it would be.
The Making of the Representations - Findings
It is common ground that any relevant representations were those made to Mr Remta. He remained bound as the purchaser notwithstanding that he nominated the other applicants as purchasers. This led the respondent to observe that the conversations with the other applicants were not centrally relevant to the case. In respect of the making of the representations, the evidence of the other applicants is relevant as confirmation of the conversations which took place between Mr Copley and Mr Remta in their presence.
The respondent also contended that credit was not an issue in most aspects of the case except in respect of Mr Remta where there was other evidence inconsistent with his version of events. The respondent called no evidence in relation to the making of the representations except, arguably, some limited indirect evidence of Mr Starr which related to a time well after the contract for the purchase of Unit 15 was made. In any event, Mr Starr’s evidence, which was limited to the meeting at the site in April 2008, was consistent with Mr Remta’s evidence.
The evidence of the applicants and Mr Copley establishes that Mr Copley told Mr Remta prior to the making of the contract for the purchase of Unit 15, that the commercial area would be used as a café / deli and that there would be no licensed liquor trading from that area. These matters were the subject of regular discussion because they were a major concern of Mr Remta. He had in mind the past history of the site and was concerned to ensure that the unit which he purchased would be a suitable place for his retirement. All the applicants referred to their knowledge of the nature of the site in the past as the reason for their concern about the potential use of the commercial area. The evidence of the applicants made perfectly good sense and reflects the probabilities.
As a group, the applicants were impressive in their evidence that Mr Copley made the alleged representations. Whilst they all remember the central components of the representations, their individual recollections, whilst consistent, were different. Some details, such as the discussion between Mr Copley and Marcus Remta about the Hudson Bar and The Old Brewery sites were recalled by one and not the others because they had some personal reason to remember an aspect of the discussion.
Mr Copley’s evidence supported the evidence of Mr Remta. However, his evidence was more general than Mr Remta’s and the other applicants. He did not purport to remember dates of particular conversations or the circumstances of their occurrence. He was the lead sales person for the Waterline development. It would not be credible if he had purported to remember the detail of every meeting. He had many of them with many purchasers. On the other hand, for Mr Remta, this was his only purchase. The greater generality of Mr Copley’s recollection made his evidence especially compelling.
It is noteworthy that the respondent did not mount any significant attack on the applicants or Mr Copley in respect of their evidence of the conversations. It was not suggested that they had failed to record them accurately, that they were not telling the truth, or that they had collaborated in producing a false version.
Mr Remta understood that the café / deli would have up to 12 tables. Marcus Remta discussed the Christopher Hillier business at Burswood with Mr Copley as an example of the small scale type of business which might occupy the commercial area. Mr Copley may not have used the words small scale to describe the type of business which was to occupy the commercial area. However, I infer from the evidence as a whole that Mr Copley conveyed, in discussions with Mr Remta, that the commercial area would be occupied by a small scale café / deli. Similarly, the discussions conveyed to Mr Remta that the commercial area would be used in a way which fitted in with the character of the development as a luxury apartment building.
It was indicated from the bar table that Mr Vis no longer works for the respondent, that he is in Perth, and that the respondent did not make any effort to have him give evidence. However, in view of the evidence given in support of the applicants’ case, it is not necessary to rely on the absence of evidence from Mr Vis in order for the applicants to establish their case.
From all of the evidence, I find that Mr Copley, on behalf of the respondent, represented to Mr Remta, before the contract to purchase Unit 15 was concluded, that the commercial area would be used for a small scale café / deli, that there would be no liquor trading from the commercial area, and that the business that operated from the area would reflect the quality of the development as a luxury apartment building.
These findings fall within the case pleaded by the applicants. The respondent’s contention to the contrary should not be accepted.
RELIANCE
The Discussion between Mr Remta and Mr Brown - The Evidence
The respondent argued that Mr Remta did not rely on Mr Copley’s representations as inducement to enter into the contract to purchase Unit 15. The respondent relied on the evidence of Mr Brown that he told Mr Remta in April / May 2006 that he intended to operate a Dome restaurant in the commercial area and that he would be selling three red wines, three white wines, and five beers. Mr Remta said that the conversation occurred after he entered into the contract to purchase Unit 15. The respondent argued that Mr Remta’s evidence should not be accepted.
In his witness statement Mr Remta stated that he had two or three conversations with Mr Brown concerning the Dome selling liquor in the commercial area. They occurred around Christmas 2007 and afterwards. Mr Brown told him that there would be licensed liquor trading, including in the outside terrace area.
In cross examination, when challenged about the date of the conversations, Mr Remta had some initial difficulty pinpointing the exact time. He explained that he met Mr Brown socially perhaps four or five times a year. He frankly acknowledged his difficulty in recollecting the timing of the discussion. As the cross examination on the subject continued, Mr Remta recalled the timing of the conversations by reference to related events. He recalled some discussions when Mr Brown told him he wanted to buy the premises but the respondent wished only to rent them to him. Then he recalled later conversations in which Mr Brown told him that the respondent had agreed to sell the commercial area to him. He recalled that the discussion about the Dome selling alcohol occurred about the time Mr Brown purchased the premises and about the time Mr Brown was fitting them out for commencement of trading.
In his witness statement Mr Brown explained that in early to mid 2006 Mr Mike Burns introduced himself to Mr Brown at the Estuary Dome in Mandurah, also operated by Mr Brown. Mr Burns, who was employed by the respondent, said that the respondent intended to construct a luxury apartment building on the site and asked if Mr Brown would be interested in leasing the commercial area for a Dome café. Mr Brown said he would be interested in buying, but not leasing the commercial area. Mr Burns said that the respondent would probably agree to a sale. Mr Brown said that a contract would need to be prepared. At the end of the discussion Mr Brown understood that the respondent would be prepared to sell to him, albeit reluctantly. Mr Brown explained the next step as follows:
9.Some time after the initial meeting, I had another conversation with Mr Burns during which the figure of $1.1m was mentioned as a possible purchase price. I cannot now recall whether it was me or Mr Burns who first mentioned that figure. That price was acceptable to me, and Mr Burns said that he expected that that amount would be acceptable to Osprey.
Then, around mid 2006, Mr Burns asked Mr Brown to draw up concept plans so that, when construction started, the commercial area could be laid out as he wanted. Mr Brown prepared those plans and gave them to Mr Burns in the latter part of 2006. Around that time Mr Brown said to Mr Burns that “we should get the agreement finalised and signed”. Mr Burns said that the respondent still preferred to lease the premises to Mr Brown. Mr Brown said that they had an agreement and that he had provided the concept plan on the basis that the sale would go ahead. In his witness statement he said:
13.Since my first discussion with Mr Burns, I had always considered that Crason [Mr Brown’s company] would enter into a contract to purchase the commercial premises at Waterline. Mr Burns’s request for concept plans reinforced that belief. Even when Mr Burns subsequently told me that Osprey would still prefer to lease the premises to us if they could, I still considered that Osprey was just messing me around and would, in due course, finalise the contract to purchase.
Then, in his witness statement, Mr Brown said that he received a phone call from Mr Di Prinzio, the new selling agent for the Waterline project, who asked whether he was still interested in buying the commercial area. Mr Brown said he was. On 4 February 2008, he sent Mr Di Prinzio an email which included the following:
Yes we are interested in buying the site for a dome café as has always been the case.
So much so that our plans were used by Cedar Woods at the request of Mike Burns who pushed for us to have them ready for him prior to the concrete pour.
We had also agreed on a price of $1,100,000.
Then after they had received the plans they began to evade our many requests to sign a contract and eventually telling us that the board no longer wished to sell.
However we still wish to purchase and believe it to still be worth the previously agreed $1,100,000 based on % return.
Mr Brown said that the contract was concluded on 9 April 2008, and Dome commenced business on 8 November 2008. On 9 February 2009, it was granted a restaurant licence under the Liquor Control Act 1988 (WA).
At the time Mr Brown gave evidence, Mr Remta did not have legal representation. Mr Remta, who is a lawyer, conducted the cross examination of Mr Brown. He put to Mr Brown that the discussion about the Dome operating from Waterline did not occur in 2006. This was denied and nothing further was explored on the subject.
As to the progress of the proposed purchase of the commercial area between 2006 and 2008, Mr Brown said in cross examination:
Yes, there was some toing and froing between Cedar Woods and ourselves, with Mike Burns holding out that they were happy to sell, and then sort of also holding out some time later that no, they’d rather lease and they were trying to sort of, you know, “now that we’ve sort of got your concept plans we’ve got it all working, the directors think they might like to keep it”. And I’m saying, “Mike, we have an agreement,” you know, which I was having difficulty getting on paper. But I said “We have an agreement” and I went and saw the company and said, you know, “You’re using our plans” and so forth. So there’s a bit of toing and froing, backwards and forwards until we finally got it on paper.
He also explained that the concept plans provided to the respondent were for the purpose of locating toilets and facilities.
Further, in cross examination, Mr Brown agreed that he has an ongoing relationship with the respondent. The respondent is constructing The Jetty development of 15 apartments at Palm Beach due for completion in June / July 2011. Mr Brown intends to operate a Dome on the ground floor of that development. He said that the project is “a replica” of the Waterline project.
Mr Starr gave some evidence which indicated the flow of events concerning the sale of the commercial area to Mr Brown. He did not take over responsibility for the Waterline project until 30 November 2007. However, his witness statement attached documents from the respondent’s file concerning the project. Included in the file was a memo dated 21 November 2006, from Rod Gardiner, the Acquisitions Manager, to Paul Sadlier, the Managing Director of the respondent. It canvassed two options relating to the commercial area, one an option to sell to Mr Brown, the other, an option to lease to a Mr Laurie Hurley. Mr Gardiner recommended the sale option.
Mr Starr said that, in around November 2007, Mr Sadlier told him that the respondent’s preference was to lease not sell the commercial area. In his witness statement Mr Starr explained:
47.In December 2007, I had a conversation with Jules Di Prinzio of Century 21, one of the sales agents for Waterline, who had been appointed in September 2007. During our conversation, we said words to the following effect:
47.1he said that he leased his office from Michael Brown, who owned the Mandurah Dome café business, and who wanted to purchase the commercial premises;
47.2he said that Mr Brown had recently told him that he was still keen to purchase the commercial premises;
47.3I said that my understanding was that Cedar Woods only wants to lease it out, they don’t want to sell it;
47.4he said that we should sort this out, and that he had someone who wants to buy the penthouse but won’t do so until it is clear what’s going to happen with the Commercial Premises.
Mr Starr confirmed in cross examination that the approach in late 2007 to Mr Brown came from Mr Di Prinzio when Mr Di Prinzio took over as selling agent for the Waterline development. The discussion between Mr Di Prinzio and Mr Brown arose because Mr Di Prinzio rented his office space from Mr Brown.
The Discussion between Mr Remta and Mr Brown - Findings
The process by which Mr Remta recalled the timing of the conversation with Mr Brown about Dome selling liquor was exposed to the Court in the course of cross examination. The picture which emerged was credible. Mr Remta was frank in his initial response that he could not recall the timing of the conversation. As his cross examination on the subject continued it was clear that his memory of the event was jogged. This appeared a genuine process of recall. Mr Remta linked the conversation to the time when Mr Brown said that he had concluded the purchase of the commercial area. Other evidence established that this was 9 April 2008. Mr Remta also recalled that the conversation was a few months before the opening at a time when Mr Brown was in the process of organising the fit out of the premises. Trading commenced on 8 November 2008.
Mr Brown’s evidence was that although the initial discussions with Mr Remta concerning the commercial area occurred in early to mid 2006, the respondent “messed him around”. This was reinforced by the evidence of Mr Starr, and, in particular, the memo of 21 November 2006 which demonstrated that, even if Mr Brown thought that he had an agreement, the respondent was still contemplating its options. Even in November 2007, the Managing Director of the respondent told Mr Starr that he favoured leasing rather than selling the commercial area.
Mr Brown’s evidence on the issue was less persuasive than Mr Remta’s. Mr Brown sought to convey the impression that the purchase of the commercial area was more certain in 2006 than it was. In truth, the respondent was not committed to the sale to Mr Brown until early 2008. The discussions in 2006 were so preliminary that they would not have caused Mr Brown to discuss with Mr Remta the detail of the liquor trading at that time. I do not accept that in this state of relative uncertainty Mr Brown held the view prior to early 2008 that the purchase of the commercial area would proceed.
Mr Brown’s evidence was generally defensive and partisan. Part of the cross examination was directed to the way in which he conducted the Dome restaurant. This was an issue related to whether the representations made by Mr Copley were false. Mr Brown was concerned to persuade the Court that his conduct of the business was not disruptive to the residents of the apartments. He had a reason to support the case of the respondent. He and the respondent have ongoing relations in connection with the development of The Jetty project.
Further, Mr Brown had less reason to recall a particular conversation than Mr Remta. For Mr Remta, the discussion related to one of the major matters of concern to him in the purchase of Unit 15. For Mr Brown, the conversation was of no particular consequence.
The respondent submitted that Mr Remta’s evidence should be treated with caution where it conflicted with other evidence. It was argued that Mr Remta allowed an allegation to be made in the statement of claim that the Dome held a small bar licence when he knew that it did not hold such a licence. The allegation against Mr Remta was not made out. Even if it had been, it would have been of little moment. The fact that the Dome did not hold a small bar licence was easily demonstrated. But, against the considerations referred to earlier in this section, the respondent’s argument against accepting Mr Remta’s evidence as credible, loses all force.
For these reasons, Mr Remta’s evidence that Mr Brown told him after Christmas 2007 that there would be liquor trading at the Dome restaurant should be preferred to Mr Brown’s evidence that the conversation occurred in 2006. I find that Mr Remta learned from Mr Brown that there would be liquor sold at the Dome at Waterline well after he entered into the contract to buy Unit 15.
The By-laws
The contract for Unit 10 included the standard by-laws applicable under the Strata Titles Act 1985 (WA). In addition, the contract included a proposed additional by-law and a notice that it was intended to seek to have the additional by-law passed at the first annual general meeting of the body corporate. Proposed additional by-law 22 provided:
Liquor licence
(1)If the proprietor, occupier or other resident of the retail lot applies for, transfers or obtains a liquor licence then this must be limited to the serving of alcohol to patrons who are seated at tables and consuming meals.
The same documents relating to the by-laws were included in the contract for the purchase of Unit 15.
In the course of cross examination it was suggested to Mr Remta that the proposal to add by-law 22 alerted him to the respondent’s intention that liquor might be sold from the commercial area. The respondent did not seem to rely on an argument about the by-law in this form in the closing submissions. In any event, the argument should not be accepted.
Both Mr Remta and Mr Copley gave evidence that they were aware of the proposed additional by-law 22 at the time when the two contracts were entered into. Mr Remta said that he relied on what Mr Copley said that there would be no liquor trading from the commercial area. Mr Remta said in his oral evidence:
The reliance was on what was said by Mr Copley and the others, and to a large extent I took that as overriding anything else.
He also said that the by-law was proposed and would have to be passed by a unanimous vote of the owners of the apartments.
Mr Remta’s evidence on this issue should be accepted. Mr Remta knew about by-law 22 and, because he thought it was of no consequence in view of Mr Copley’s statements, he took no action in relation to it. However, when he perceived that the respondent had changed its position on the sale of alcohol from the commercial area, he acted with vigour. The circumstances were as follows.
Mr Starr found when he worked on the Nautilus project that the respondent could not lease a commercial area for use as a wine bar because the by-laws of the body corporate did not allow it. He was unable to obtain a unanimous vote of the apartment owners in order to change the by-laws. When he later took charge of the Waterline project he sought to overcome that problem at the Waterline apartments by proposing an alteration to the additional by-laws. He came to the Waterline project with no knowledge of the representations made by Mr Copley to Mr Remta. He thus wrote to the purchasers of the units in the Waterline project on 30 November 2007 in relation to the proposed change as follows:
Since this by-law was drafted, the Small Bar Licence has been introduced by the Department of Racing, Gaming and Liquor which allows for a maximum of 120 people on the premises, does not allow the sale of packaged liquor and restricts trading hours. It is also significant to note that nightclub, hotel and bottleshop licences remain prohibited under the amended by-laws.
The Small Bar Licence has been created to encourage the establishment of intimate licensed venues that would be ideal for Waterline and we have amended this by-law to potential operators this option. The amended by-law is noted below for your information:
(1)If any of the commercial/retail lots apply for, transfer or obtain a liquor licence then this must be limited to a Restaurant or Small Bar licence.
(2)Any part of a commercial / retail lot including the exclusive use area (or the Alfresco Area) may be used for the purposes of serving alcohol in accordance with the terms of the approved liquor licence.
(3)A proprietor or tenant shall not be permitted to make application for a hotel, nightclub or bottle shop liquor licence.
Mr Remta was overseas when the letter arrived. On his return he responded on 19 February 2008 with a strong objection as follows:
To begin with, I note that you are now attempting to alter the by-laws of the intended strata company to extend the liquor licensing arrangements for the downstairs part of the development.
From what is proposed it is obvious that there will be a bar within the premises as well as alfresco dining and drinking, both of which are completely contrary to my understanding of the original concept of the development.
As these proposals would allow for the public consumption of alcohol within the bar area and outside the development, the noise and nuisance that this will cause, particularly during the summer, would be completely unacceptable to residents of the development.
I have made some enquiries regarding the nature of the activities that could be conducted under the proposed liquor licence (which I understand will be taken up by the Dome Group as the proposed purchaser of the downstairs commercial area) and it is quite obvious that this will detract from the overall residential status of the development and have a marked detrimental effect on the value of the individual apartments.
…
Finally, I reserve all my legal rights so far as my purchase of the apartment is concerned and if necessary will terminate the contract should it prove that I have been misled in any way with regard to my proposed purchase.
Mr Remta’s vigorous response demonstrates that, when the respondent first indicated that it was stepping away from Mr Copley’s representations, Mr Remta promptly objected in the firmest terms.
The Property Price Collapse
It was put to Mr Remta in cross examination that the prices of property in Perth, and Mandurah in particular, collapsed at the end of 2007. Mr Remta agreed. There was no further cross examination on this matter. It was not put to Mr Remta that he was motivated to recoil from the purchase because of the collapse in prices. In the closing submissions the respondent contended that the collapse in property prices motivated Mr Remta to seek to free himself of the contract. The evidence does not support this argument and it is not accepted.
THE NATURE OF THE USE OF THE COMMERCIAL AREA
The respondent induced Mr Remta to buy Unit 15 on the basis that there would be no liquor trading from the commercial area, that the area would be occupied by a café / deli, and that the café / deli would be a small scale business which fitted in with the character of the development as a luxury apartment building.
The statement concerning liquor trading was false because the Dome restaurant does sell alcohol pursuant to a restaurant licence held by it.
The case is unusual in that both parties to the discussions, Mr Remta and Mr Copley, say that the Dome restaurant is not a café / deli, is not small scale, and is not in keeping with the nature of the development as a luxury apartment building. The pleaded terms of the representations are no doubt a condensed version of a number of exchanges between Mr Remta and Mr Copley. An understanding of what was intended and what was understood from the discussions derived from the surrounding conversations between the two men. The fact that they agree that the use of the area by Dome does not conform with the representations is significant. It demonstrates that what was said and what was understood coincided, at least in respect of the Dome restaurant as it operates.
No attempt was made by the respondent to suggest that Mr Remta and Mr Copley had colluded in presenting a false picture of their views about the compliance of the Dome with the representations.
Mr Remta expected from what he had been told that there would be 12 perhaps up to 20 tables in the café / deli. The Dome seats 120 people. The respondent contended that the size of the commercial area was known to Mr Remta from the beginning when he saw the plans of the area. However, the dimensions of the area designated on the plans said nothing about the layout or the way in which the area was to be utilised. I find that the Dome was not a small scale café / deli as represented to Mr Remta. Rather it is a large restaurant.
Finally, Mr Remta gave evidence that the Dome is a busy and noisy venue. I find that these aspects are not in keeping with the nature of the development as a luxury apartment building. The representations were false in this regard.
DID THE CONDUCT CONTRAVENE S 52?
It is established that the respondent represented to Mr Remta that the commercial area would be used for a café / deli, that there would be no liquor trading from the commercial area, that the café / deli would be a small scale business, and that the café / deli would fit in with the character of the development as a luxury apartment building.
It is also established that Mr Remta relied on these representations in deciding to purchase Unit 15 and paying the deposit under the contract.
It is further established that the commercial area is not used as a café / deli, that it sells liquor under a restaurant licence, that it is not a small scale business, and that it does not fit in with the character of the development as a luxury apartment building.
The representations contained an implied promise as to the future, namely, that the respondent would ensure that the commercial area would be used for a café / deli, that there would be no liquor trading from the commercial area, that the café / deli would be a small scale business, and that it would fit in with the character of the development as a luxury apartment building. As the conduct of the respondent involved the making of a representation with respect to a future matter, s 51A of the Act applies. It provides as follows:
(1)For the purposes of this Division, where a corporation makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading.
(2)For the purpose of the application of subsection (1) in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation.
In this case the respondent did not adduce evidence that it had reasonable grounds for making the representations. The representations are therefore deemed to be misleading.
In any event, the evidence taken as a whole establishes on the balance of probabilities that the respondent did not have reasonable grounds for making the representations. Even though, as I find, the respondent instructed Mr Copley that the commercial area would be used for a small scale café / deli and there would be no liquor trading from the area, Mr Starr was instructed to seek to amend the by-laws to allow for licensed liquor trading. Whilst the respondent instructed its agent to say one thing, it instructed its staff to take steps which demonstrated that it contemplated doing the opposite.
RELIEF
If follows from these reasons that the respondent engaged in misleading and deceptive conduct in contravention of s 52 of the Act by representing that the commercial area would not be used for liquor trading, that it would be used as a café / deli, that the business would be small scale, and that it would fit in with the character of the development as a luxury apartment building. That conduct induced Mr Remta to enter into the contract to purchase Unit 15 and to pay the deposit of $153,000.
In order redress the loss and damage which Mr Remta has suffered there will be an order under s 87(2)(c) of the Act that the respondent refund to Mr Remta the amount of the deposit, and, under s 87(2)(d) of the Act, an order that the respondent pay to Mr Remta interest on the said sum of $153,000 at the rate of six per cent per annum from 16 August 2007. As the deposit is held by Colliers International as stakeholder it is open to the respondent to authorise Colliers International to pay that sum to Mr Remta in satisfaction of the order for repayment of the deposit. It is also appropriate that the Court declare that the contract of sale of Unit 15 between Mr Remta and the respondent was void ab initio.
The applicants relied on a number of other causes of action to obtain the same relief. As they have been successful on the s 52 claim, it is unnecessary to address the other bases for relief.
It also follows that the respondent’s cross claim for enforcement of the contract to purchase Unit 15 must be dismissed.
The respondent must pay the applicants’ costs of the proceeding.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 15 July 2011
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