SW Investments NSW Pty Ltd v 16 Boondilla Pty Ltd

[2017] NSWSC 762

Supreme Court

New South Wales

Medium Neutral Citation:	SW Investments NSW Pty Ltd v 16 Boondilla Pty Ltd [2017] NSWSC 762
Hearing dates:	5 June 2017
Date of orders:	14 June 2017
Decision date:	14 June 2017
Jurisdiction:	Equity
Before:	Darke J
Decision:	Orders made declaring agreements void and requiring defendants to compensate first plaintiff for loss.
Catchwords:	CONSUMER LAW – misleading or deceptive conduct –agreements executed for purchase of share of property– money paid towards purchase – inaccurate and incomplete explanation of transaction given by defendant to plaintiff – failure to disclose true nature of transaction – where plaintiff had poor command of English and relied on defendant’s explanation of documents – agreements declared void – orders made requiring defendants to compensate plaintiff for loss
Legislation Cited:	Competition and Consumer Act 2010 (Cth), Sch 2, ss 18, 237 Corporations Act 2001 (Cth), s 500 Uniform Civil Procedure Rules 2005 (NSW), r 29.7
Category:	Principal judgment
Parties:	SW Investments NSW Pty Ltd (First Plaintiff) Huijing Song (Second Plaintiff) 16 Boondilla Pty Ltd (First Defendant) PRM Development (NSW) Pty Ltd (Second Defendant) Xin Li (Third Defendant) PRCM Constructions Pty Ltd (Fourth Defendant)
Representation:	Counsel: Mr M K Condon SC (Plaintiffs)   Solicitors: Juris Cor Legal (Plaintiffs)
File Number(s):	2015/338463
Publication restriction:	None

Judgment

Introduction

1. The plaintiffs, SW Investments NSW Pty Ltd (“SW Investments”) and Huijing Song (“Ms Song”), seek relief in respect of a transaction entered into in August 2015 by which SW Investments and the second defendant (“PRM Development”) were to jointly purchase the land comprised in folio identifier 91/2/11935 and known as 16 Boondilla Road, The Entrance (“the Property”) from the first defendant (“16 Boondilla”). In particular, the plaintiffs seek recovery of an amount of $287,400 which was paid to 16 Boondilla. The plaintiffs also seek relief in respect of two subsequent written agreements by which that sum was to be invested in other property developments being carried on by PRM Development.

2. The plaintiffs allege that their involvement in the initial transaction was procured by misleading or deceptive conduct in contravention of s 18 of Schedule 2 to the Competition and Consumer Act 2010 (Cth)(“the Australian Consumer Law”), and, alternatively, by unconscionable conduct in contravention of ss 20 and 21 of the Australian Consumer Law. They allege that the two subsequent agreements are unenforceable – the first by reason of uncertainty or incompleteness; the second because it too was procured by misleading or deceptive, or unconscionable, conduct.

3. Ms Song is the majority shareholder in SW Investments, which was incorporated on 3 August 2015 for the purpose of the initial transaction. The first defendant, 16 Boondilla, was incorporated on 8 August 2015. It was named as the vendor under a contract for sale and an option deed (both dated 9 August 2015) by which SW Investments and PRM Development (the second defendant) were to become 2/5 and 3/5 owners of the Property respectively. The third defendant, Ms Xin (Cindy) Yi, was a friend of Ms Song’s and the wife or perhaps former wife of the sole director and shareholder of 16 Boondilla and PRM Development, Mr Paul Moseley. Ms Song conversed with Ms Xin in the Mandarin language.

4. The plaintiffs also bring a claim against the fourth defendant, PRCM Constructions Pty Ltd (“PRCM”), in respect of an amount of $140,000 received by PRCM out of the $287,400 that was received by 16 Boondilla. PRCM is a company that has recently (on 24 May 2017) gone into voluntary liquidation. The plaintiffs have not sought or obtained the leave of the Court under s 500(2) of the Corporations Act 2001 (Cth) to proceed against PRCM. The plaintiffs sought an adjournment of the proceedings insofar as they concern PRCM. The Court granted that adjournment having regard to the fact that the liquidation arose only a short time ago.

5. When the matter was called on for hearing there were no appearances by any of the first to third defendants. Their solicitor filed a Notice of Ceasing to Act on 1 June 2017. However, it is clear that the first to third defendants were aware of the hearing date. In accordance with Uniform Civil Procedure Rules 2005 (NSW) r 29.7, the Court proceeded with the hearing of the claims made against the first to third defendants.

6. In support of those claims, the plaintiffs read Ms Song’s affidavit of 1 December 2015, parts of Ms Song’s affidavit of 29 June 2016, and an affidavit of Hamilton Zhou, solicitor, of 2 June 2017. In addition, a number of documents were tendered and admitted into evidence.

Summary of relevant facts

7. In July 2015 Ms Song visited the Property on a number of occasions with Ms Xin and Mr Moseley, who advised her that it offered a very good development opportunity for the construction of residential apartments. Ms Xin asked whether Ms Song and her husband wished to join in the development project that she and Mr Moseley were planning for the Property. She advised Ms Song that she should “really seize the opportunity and act quickly” because “the vendor wants a fast response”.

8. SW Investments was incorporated in early August 2015 as the vehicle by which Ms Song and her husband, Mr Xuelong Feng, would take an interest in the Property. Ms Song became the majority shareholder, and Mr Feng became the director. On 8 August 2015 Mr Feng provided written authority for Ms Song to sign the contract for purchase of the Property on behalf of SW Investments. Also on that day, Ms Song discussed finding a lawyer with Ms Xin, and the following exchange occurred:

Ms Song:   I would like to get a lawyer to look at the contract for the property’s purchase before I sign it.

Ms Xin:   Sister, you don’t need your own lawyer. We are both purchasers. We can use the same lawyer. Our lawyer is very good and you can save up on legal fees if we use the same lawyer.

Ms Song:    Okay. I trust you and I don’t think there’ll be problems with us both using the same lawyer as we are both dealing with the vendor.

9. On 9 August 2015 Ms Song met with Ms Xin and Mr Moseley to sign the contract for the purchase of the Property. The contract consisted of the 2014 edition of the Law Society-Real Estate Institute standard form, supplemented by special conditions. The vendor was noted as “The 16 Boondilla Trust”, whose solicitor was recorded as “SME Property Lawyer”. The vendor may be taken to be 16 Boondilla. The evidence indicates that it was the trustee of a trust known as The 16 Boondilla Trust. The purchaser was noted as PRM Development in 3/5 share and SW Investments in 2/5 share. The purchase price was $765,000. Prior to signing, Mr Moseley made some observations about the contract to Ms Song in English, which Ms Xin interpreted. She stated:

Sister, Mr Moseley is saying that here is the name of the vendor and the purchasers’ names are here. The shares for the property’s interest are 60% to us and 40% to you. The zoning of this land is R3. These are the main things in the contract, the rest are not important. Here’s where you sign.

Ms Xin also informed Ms Song that PRM Development would be funding its 3/5 purchase using its own cash funds.

10. Ms Song signed the contract on behalf of SW Investments and Mr Moseley signed on behalf of PRM Development. A person by the name of John Collins apparently signed for 16 Boondilla Trust. The evidence does not disclose his identity or the basis of his authority to sign for 16 Boondilla.

11. Immediately thereafter Ms Song “was also presented with two other pages which [she] later learnt were part of an option deed for the purchase of the property.” She gave evidence that she did not receive an explanation of this document, and thought she was “signing a document relating to the actual purchase of the property.” The two pages were the front page and execution page of an option deed dated 9 August 2015, which identified the same vendor and purchasers as the contract. It provided for a price of $765,000, an option period of 15 months, and an “Option Fee/Deposit” of $306,000. Ms Song signed this document on behalf of SW Investments and Mr Moseley signed on behalf of PRM Development. There was no signatory for the vendor, recorded as “16 Boondilla Pty Ltd as Trustee for the 16 Boondilla Trust.” Ms Song did not obtain copies of the documents she had signed.

12. I interpolate here that 16 Boondilla was not in fact the owner of the Property. The registered proprietor was a Ms Bronkhorst. A search attached to the contract discloses that fact, but this was not drawn to Ms Song’s attention. Neither was the fact that 16 Boondilla was a company associated with Mr Moseley. It is noteworthy that on 28 August 2015, not long after the execution of the contract and option deed, 16 Boondilla entered into a contract to purchase the Property from Ms Bronkhorst for $521,000, an amount $244,000 less than the price under the contract and option deed executed by SW Investments and PRM Development. The purchase from Ms Bronkhorst did not proceed. She terminated the contract in November 2015 after 16 Boondilla failed to complete.

13. On 10 August 2015 Ms Xin prevailed upon Ms Song to “pay the 10% deposit under the contract”, which was said to be $30,600. The two met at the bank and Ms Song drew a bank cheque for that amount in favour of SME Property Lawyer. On 18 August 2015 Ms Xin told Ms Song that another payment was required under the contract so that the purchase of the land and commencement of the design process could occur sooner. Ms Song drew a bank cheque in favour of the 16 Boondilla Trust for $287,400. Included in this amount was $12,000 for stamp duty which Ms Xin stated was also required. The $287,400 was paid into a bank account held by 16 Boondilla.

14. Ms Song enquired in late August as to how the purchase was progressing. Ms Xin informed her that “the contracts have been exchanged.” Following two requests, she was provided with a copy of the contract on 6 September 2015. Ms Song noticed that SME Property Lawyer was stated to be the vendor’s solicitor. Ms Song became concerned because she thought SME Property Lawyer was the solicitor for the purchasers. Additionally, she noticed that there was no solicitor for the purchasers recorded on the contract. She raised these concerns with Ms Xin, who explained that the vendor was using SME Property Lawyer because the vendor is “overseas right now” and “can’t find a lawyer”. She told Ms Song that everything would be fine.

15. On 15 September 2015, Ms Xin informed Ms Song that the first cheque for $30,600 had to be “changed” so that it was drawn in favour of “the 16 Boondilla Trust”. Ms Song drew a second cheque for that amount in favour of the 16 Boondilla Trust accordingly. It seems that the first cheque was never presented.

16. At about that time Ms Song visited a solicitor, Mr O’Connor. He informed her that the exchange of contracts had not yet occurred. Ms Song then visited Ms Xin and Mr Moseley at their home and asked how much longer it would take to complete the purchase. Mr Moseley informed her that “contracts have been exchanged but there’s no settlement yet.”

17. On 16 September 2015 Ms Song requested Ms Xi to return the bank cheque drawn the previous day. Ms Xi did so.

18. On about 17 September, Ms Song discovered that Mr Moseley was the sole director and secretary of 16 Boondilla, the vendor under the contract, and that it “was a new company with apparently no assets”. It is likely that this information was conveyed to her by Mr O’Connor.

19. On 19 September 2015 Ms Song had a discussion with Ms Xin about the transaction in the following terms:

Ms Song:   What you guys have done with the property’s purchase is deception.

Ms Xin:   No, what we have done is legal because you also signed a copy of the option deed at the same time as you signing the contract. There’s two pages of the option deed that you’ve signed.

Ms Song:   How come I don’t know about the option deed? You didn’t tell me about it when we signed the contract.

Ms Xin:   You’ve forgotten that you signed a total of four pages. Two pages for the contract and two pages of the option deed. Our lawyer said that I shouldn’t have given you that copy of the contract. He says that contract has no effect. I should only have given you the option deed. That’s legal.

Ms Song:   What you guys have done makes the deception even worse. How could you guys deceive me like this? You guys have used my kindness and trust.

Ms Xin:   I’ll send you the option deed these two days. You’ll know what’s happening once you see it.

20. Ms Song then spoke to Ms Xin about recovering the funds she had advanced in connection with the purchase. Their conversation included the following:

Ms Song:   If you don’t give the money back and not [sic] give a proper receipt for it, I’ll sue you guys for fraud.

Ms Xin:   Sister, we are having real difficulties with our capital and cash flow. I am so sorry about what’s happened. I know I’ve let you down but we’ve got our difficulties. I hope you can understand everything. I’m sure we can arrange something to fix this problem with the property’s purchase.

21. A further exchange then occurred:

Ms Xin:   I have just spoken with Paul. Our proposal is for you to exit from the contract for the property’s purchase and enter into our two other property projects with your $287,400 invested into the two other projects by way of joint venture. That way, you will get a share in the projects equivalent to the $287,400 you have contributed.

Ms Song:   Well, if the money isn’t refunded to me now, then you must give the money to me after the joint venture goes ahead for the money to be invested in the joint venture. This is because I am not investing my money into Paul’s company, but engaging in a cooperative relationship involving two independent companies jointly working on property projects by way of joint venture.

22. On 20 September 2015 Ms Song and Ms Xin had further discussions including the following:

Ms Xin:   Sister, I don’t know what to say to you. I can’t open my mouth. Either way, I’ve let you down.

Ms Song:   Well, I will ask and you will answer. Why deceive us?

Ms Xin:   Because if I told you the truth, you would not have signed the documents, let alone given money. You guys are doing a cash purchase, we are relying on a mortgage loan. We are jointly purchasing the land. You have a 40% share, we have a 60% share. The whole land has to be mortgaged to get the loan. If things aren’t done like this, the bank isn’t going to lend money to us.

23. There was then further discussion about how to resolve the situation. Ms Xin indicated that she and Mr Moseley were unable to return the funds that had been advanced, but proposed that the money be put towards the defendants’ two other development projects “by way of a joint venture method of co-operation.” Ms Song insisted upon a “debt agreement with your personal assets and fixed-term savings guaranteeing your repayment of our money.” After some disagreement about its terms, an agreement was handwritten by Ms Song “in Chinese”. Ms Song stated that Mr Moseley should sign the agreement, but that Ms Xin could sign in his absence. Both Ms Song and Ms Xin signed the agreement. It was never signed by Mr Moseley. The agreement (“the 20 September agreement”) as translated provides:

AGREEMENT

PARTY A: HUIJING SONG

PARTY B: XIN YI

After discussions, Party A and Party B have reached the following agreement.

With respect to the parcel of land situated at 16 Boondilla Road The Entrance jointly purchased by Party A and Party B, Party A has already paid the deposit of $287,400.

Party B now agrees for Party A to exit from the cooperative relationship with respect to the parcel of land.

Party B agrees to transfer 20% interest of the original purchase price of 12 Wahroonga Road Wyongah and 20% interest of the original purchase price of 199 Bay Road Toowoon Bay to Party A, which is commensurate to the value of the deposit ($287,400).

Party A agrees to the above method for the purpose of exiting and purchasing and will use the legal document drafted by the lawyers for Party A and Party B as the basis.

In the event that this agreement cannot be successfully carried out due to the actions of Party B, then Party B shall be liable for all consequences and is willing to use her own personal assets and fixed savings ($520,000 in Westpac fixed savings account for the period between 8 July 2015 and 8 January 2016) for the purpose of refunding the $287,400 deposit paid by Party A with respect to the joint purchase of 16 Boondilla Road The Entrance.

24. The 20 September agreement contemplated the use of a “legal document drafted by the lawyers” as the basis of the arrangement. A detailed proposal of the terms of such a document was sent by the defendants’ solicitor to Ms Song’s solicitor on 25 September. It appears, however, that no such document was ever drafted. Ms Song’s solicitor demanded that the $287,400 be refunded to Ms Song.

25. On 28 September 2015 Ms Song requested that Mr Moseley sign the 20 September agreement. It seems that he refused to do so because it had been written in Mandarin. Ms Song demanded that an English version of the agreement be prepared so that she and Mr Moseley could sign it. She deposed that Ms Xin brought two copies of a document (written in English) to her home, and translated it to her in Mandarin in the following terms:

Party A and Party B are our companies. Party B agrees for Party A to exit from the contract. The $287,400 goes to the two other projects. Party A gets a 40% share in the Wyongah property and 20% share in the Toowon [sic] Bay property through a cooperative method.

26. Ms Song raised queries about the terms of the agreement including the reference to co-operation. She stated that she wanted an agreement requiring the funds to be returned and for repayment to be guaranteed using Ms Xin’s personal funds. She said that getting her money back was separate from any involvement in other projects. Ms Xin responded:

The shares and the rest of the document’s contents are not important. The most important thing is that Paul’s signature is on the document and acknowledges he owes you the money. You have written proof of your exit from project and our acknowledgement of your debt. You also have my bank funds guarantee. What are you scared of? You don’t have to co-operate.

27. Ms Song signed the document (“the 28 September agreement”) for SW Investments in reliance upon what Ms Xi said to her. Mr Moseley signed the document for PRM Development. In fact, the terms of the 28 September agreement were:

Agreement

Party A: SW Investments NSW P/L

Party B: PRM Development (NSW) P/L

Party A and party B agrees party A to discontinue the project at 16 Boondilla Road The Entrance, party B agrees party A to transfer the payment of $287,400 from 16 Boondilla project to the project currently running 12 Wahroonga Rd, Wyongah and 199 Bay Rd, Toowoon Bay, party A and party B agrees take party A 40% and party B 60% of the total cost to complete the project at 12 Wahroongah Rd, Wyongah (estimat [sic] $1m) and up to 20% at 199 Bay Rd, Toowoon Bay (estimate $2m).

28. Ms Song gave evidence that she was not told about a number of terms in the 28 September agreement. In particular, she was not told that SW Investments was to bear part of the total cost of the two projects or what the costs of the projects were likely to be.

29. On 10 October 2015 Ms Song obtained the counterpart of the option deed which she and Mr Moseley had executed on 9 August. Unlike the contract for sale, which had been signed by “John Collins” for 16 Boondilla, Mr Moseley had executed the counterpart deed on 16 Boondilla’s behalf.

The claim in respect of the contract for sale and option deed, and the money paid

30. The plaintiffs’ primary contention is that the contract for sale and option deed were entered into on 9 August 2015 as a result of misleading or deceptive conduct on the part of each of the first to third defendants. The conduct complained of is that of the third defendant, Ms Xi, on her own behalf and on behalf of the first and second defendants. The impugned conduct includes the making of various statements said to be inaccurate, or half-truths, and a failure to inform the plaintiffs of numerous matters relevant to the transaction.

30. I am satisfied, based on the unchallenged evidence adduced by the plaintiffs, that Ms Xi, on her own account and on behalf of 16 Boondilla and PRM Development, engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law. It is clear that the conduct took place in trade or commerce within the meaning of the section. The parties were discussing a business venture involving the acquisition and development of a property. I am further satisfied that as a result of that conduct, SW Investments executed the contract for sale and option deed, and Ms Song later provided cheques for $30,600 and $287,400. That is to say, it is likely that had the conduct not taken place, those documents would not have been executed and the cheques would not have been provided.

31. Ms Song had little ability in spoken or written English. She spoke to Ms Xi in Mandarin in all the discussions about the Property. On some occasions (including the initial conversations) Mr Moseley was present. It can be inferred from the evidence that the companies he controlled, which were to be involved in the acquisition and development of the Property, namely PRM Development and (from its incorporation on 8 August 2015) 16 Boondilla, permitted Ms Xi to speak for them in their dealings with Ms Song and SW Investments. I accept that Ms Song placed a substantial degree of trust in Ms Xi.

32. Ms Xi told Ms Song about the great development opportunity the Property was. She also told her that there was a need to move quickly because the vendor wanted a fast response. She said that Ms Song did not need her own lawyer because “we are both purchasers”. That may be taken as a reference to SW Investments and PRM Development. These statements were apt to create the impression that the proposed transaction was an arms-length sales transaction between the vendor on the one hand, and the two purchasers on the other, with the interests of the purchasers in the transaction being substantially the same (apart from the different proportions they were to take).

33. However, the documents which Ms Xi requested Ms Song to execute (on behalf of SW Investments) on 9 August 2015 recorded a transaction of a very different character. Yet the explanation given by Ms Xi about the contract for sale failed to provide an accurate or full description of the transaction. Important features of the transaction were not referred to at all.

34. The transaction was not an arms-length one between a vendor and two purchasers. The recently incorporated 16 Boondilla was in fact under the control of Mr Moseley, as was PRM Development. 16 Boondilla was not then in a position to sell the Property to the purchasers, as it was not the owner of the Property. It would therefore have to acquire the Property in some way and on some basis. No mention was made of these matters by Ms Xi. She made no mention of, and gave no explanation of, the option deed. Ms Song thought that document related to an “actual purchase” of the Property. Ms Song was clearly deceived by Ms Xi. Ms Xi effectively admitted as much in her conversation with Ms Song on 20 September 2015.

35. Having regard to the importance of the matters that were not made known, and Ms Song’s evidence about what took place shortly after she became aware of Mr Moseley’s involvement with 16 Boondilla, I accept that had an accurate description of the transaction been given to her, she would not have proceeded to execute the documents, and she would not have proceeded to provide the cheques. The $287,400 that was paid into the account of 16 Boondilla was paid for the purpose of acquiring a two-fifths share in the Property as envisaged by the contract for sale. That purpose entirely failed. SW Investments received no benefit from the money it paid.

36. In my opinion, in circumstances where execution of both the contract for sale and the option deed were procured by the misleading or deceptive conduct described above, and $287,400 was subsequently paid pursuant to the transaction thereby entered into, orders should be made under s 237(1) of the Australian Consumer Law declaring those agreements void and requiring the first to third defendants to pay the sum of $287,400 (plus interest) to SW Investments. Those orders will compensate SW Investments for the loss and damage it has suffered by reason of the misleading or deceptive conduct of the first to third defendants.

The claim in respect of the 20 September agreement

38. The plaintiffs contend that the document signed by Ms Song and Ms Xi is uncertain, incomplete on its face, and not intended to be a stand alone binding agreement, particularly in the absence of 16 Boondilla and PRM Development as parties. It is also contended that execution of the agreement by Mr Moseley was a condition precedent to it becoming binding.

39. In my opinion, leaving aside questions concerning Ms Xi’s authority, and whether the parties intended to be immediately bound, the agreement lacks sufficient certainty to be enforceable. Its terms contemplate an “exit from the co-operative relationship” in respect of the Property and a “method for the purpose of exiting and purchasing” is set out in its fourth paragraph. However, it is entirely unclear on the evidence what is encompassed in the transferring of a “20% interest of the original purchase price” in relation to each of the two other properties which, I note, were owned by the fourth defendant. Accordingly, the Court will declare that the 20 September agreement is invalid and of no effect.

The claim in respect of the 28 September agreement

40. The primary contention is that this agreement was entered into as a result of misleading or deceptive conduct on the part of Ms Xi. It is said that Ms Xi’s translation and later description of the document (written in English) was incomplete. In particular, it is said that the explanation made no mention of any liability for costs of development of the Wyongah and Towoon Bay properties.

41. I agree that the conduct of Ms Xi, which took place in trade or commerce, was misleading or deceptive or likely to mislead or deceive. The translation was incomplete and inaccurate in its failure to state that the document provided for SW Investments to be liable for a share of potentially very substantial costs. The later description also failed to include any reference to a liability for costs, and it was suggested that the part of the document concerning “shares” was not important. The description was also inaccurate insofar as it suggested that Mr Moseley had acknowledged that he owed Ms Song or SW Investments $287,400, and that Ms Xi had provided a “bank funds guarantee”.

42. I accept that Ms Song signed the document relying upon what she was told about it by Ms Xi. I further accept that had Ms Xi translated and described the document completely and accurately, it is unlikely that Ms Song would have signed it. Her principal concern was to secure a written agreement signed by Mr Moseley which contained his acknowledgment of debt and provided for the $287,400 to be returned. There had been no prior discussion about SW Investments participating in any projects on the basis that they may be liable for significant costs. If the document had been truly translated and described to her, Ms Song would have realised that it provided not for the $287,400 to be returned, but rather for the money to go directly into two projects on the basis that SW Investments would incur liabilities to contribute towards costs estimated to be about $3 million (with SW Investments’ share being about $800,000). It is unlikely that Ms Song would have proceeded had she been aware of those matters.

43. In my opinion, in circumstances where execution of the 30 September agreement was procured by misleading or deceptive conduct, and the agreement would potentially expose SW Investments to significant liabilities, an order should be made under s 237(1) of the Australian Consumer Law declaring the agreement to be void. That order will prevent SW Investments from suffering loss or damage due to the obligations the agreement would otherwise place upon it.

Conclusion

44. For the above reasons, the evidence adduced by the plaintiffs satisfies the Court that orders should be made setting the various agreements aside and requiring the defendants to pay the sum of $287,400 plus interest to the first plaintiff. It is not necessary for the Court to consider numerous other arguments advanced by the plaintiffs, including the claims of unconscionable conduct and non est factum.

45. The Court will make the following orders:

1. Pursuant to s 237(1) of the Australian Consumer Law, declare that the contract for sale dated 9 August 2015 between the first plaintiff and the first and second defendants is void.

2. Pursuant to s 237(1) of the Australian Consumer Law, declare that the option deed dated 9 August 2015 between the first plaintiff and the first and second defendants is void.

3. Pursuant to s 237(1) of the Australian Consumer Law, order that the first, second and third defendants pay to the first plaintiff the sum of $287,400 plus interest calculated in accordance with Uniform Civil Procedure Rules r 6.12(8) from 18 August 2015 to the date of entry of judgment in accordance with this order.

4. Grant leave to the first plaintiff to apply, within 14 days, for the entry of judgment accordingly.

5. Declare that the agreement dated 20 September 2015 and executed by the second plaintiff and the third defendant on 20 September 2015 is invalid and of no effect.

6. Pursuant to s 237(1) of the Australian Consumer Law, declare that the agreement dated 28 September 2015 between the first plaintiff and the second defendant is void.

7. Order that the first to third defendants pay the plaintiffs’ costs of the proceedings.

8. Adjourn the proceedings, insofar as the claim against PRCM Constructions Pty Ltd is concerned, to 18 August 2017 for directions.

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Decision last updated: 14 June 2017