Seirlis v Bengtson &Ors

Case [2013] QSC 240

SUPREME COURT OF QUEENSLAND

CITATION:

Seirlis v Bengtson &Ors [2013] QSC 240

PARTIES:

IMOGEN ELISE SEIRLIS
(plaintiff)
v
MARK STACEY BENGTSON
JUDITH FAY BENGTSON
ROBERT ALAN ZIRBEL
LYNDIS ARRAN ZIRBEL
VARGAN HILL PTY LTD
(first defendants)
and
PHILIP JAMES WAIGHT
HADGELIAS HOLDINGS PTY LTD (ACN 010 422 983)

(second defendants)

FILE NO/S:

7430 of 2011

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

11 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

18, 19, 20 March 2013, 22 and 23 April 2013

Further written submissions provided on 2 August 2013

JUDGE:

Philip McMurdo J

ORDER:

The defendants pay to the plaintiff the sum of $312,037, including $47,037 of interest to the date of this judgment.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – PARTICULAR CASES – REAL ESTATE TRANSACTIONS – where the plaintiff entered into a contract for the purchase of an apartment from the first defendants – where second defendants were selling agents of the first defendants – where there were representations that apartment had three car parks– where implication that this amounted to a representation that apartment had three car parks that could lawfully be used – where concrete plinth was physical impediment to use of third car park – where concrete plinth could not be lawfully removed without approval of Body Corporate of apartment building and amendment of development approval plan by the city council – where the plaintiff aware of presence of concrete plinth prior to the contract date – where the defendants did not suggest plaintiff knew of the legal impediment at the time of contract – where the value of the apartment was affected by the absence of a third car park – where the plaintiff brought action for misleading and deceptive conduct against the defendants – whether representations were misleading or deceptive – whether plaintiff knew of legal impediment at time of contract – whether plaintiff would have entered into the contract in the absence of the representations – whether plaintiff entitled to damages claimed for reduction in the value of the apartment and other losses claimed to have been suffered as a consequence of entering into the contract of sale

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – PROFESSIONAL PERSONS – where the plaintiff alleged the second defendant real estate agent owed her a duty of care – where the plaintiff alleged the duty of care was to take care in the provision of information – where the information not provided by the agent was whether the apartment had a third car park that could lawfully be used – where the apartment only had two lawful car parks – whether the second defendant owed the plaintiff a duty of care

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR…

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Seirlis v Bengtson &Ors [2013] QSC 240
Case
[2013] QSC 240
Decision Date

CaseChat Overview and Summary

Seirlis v Bengtson & Ors was a case brought by the plaintiff against the first defendants, the sellers of an apartment, and the second defendants, their selling agents, for misleading and deceptive conduct. The plaintiff entered into a contract for the purchase of an apartment, which was advertised and represented as having three car parks. However, the third car park was not lawfully usable due to a concrete plinth, which the plaintiff was aware of prior to the contract date. The plaintiff sought damages for the reduction in the value of the apartment and other losses claimed to have been suffered as a consequence of entering into the contract of sale.

The court had to decide whether the representations made by the defendants were misleading or deceptive and if the plaintiff knew of the legal impediment at the time of the contract. The court also had to consider whether the plaintiff would have entered into the contract in the absence of the representations. Furthermore, the court had to determine whether the second defendant owed a duty of care to the plaintiff in the provision of information and whether any defendant was entitled to apportionment of liability.

The court found that the representations were misleading or deceptive and that the plaintiff did not know of the legal impediment at the time of the contract. The court also found that the plaintiff would have entered into the contract in the absence of the representations. The court held that the second defendant owed a duty of care to the plaintiff in the provision of information, but this did not amount to a breach of that duty. The court held that the second defendant was liable for the separate representation he made, and that the first defendant was also liable for the representations made by the second defendant. The court held that no defendant was entitled to apportionment of liability.

The court ordered that the defendants pay to the plaintiff the sum of $312,037, including $47,037 of interest to the date of the judgment.

Orders

Orders of the court

The defendants pay to the plaintiff the sum of $312,037, including $47,037 of interest to the date of this judgment.

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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