Vickers v Taccone - [2005] NSWSC 514

CITATION:
Vickers v Taccone [2005] NSWSC 514
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20 - 22, 24 & 27 September 2004, 7, 9 & 10 December 2004, 11 February and 23 March 2005

JUDGMENT DATE :

31 May 2005

JURISDICTION:
Equity

JUDGMENT OF:
Hamilton J

DECISION:
First and second defendants did not validly rescind contract, are not entitled to return of deposit and are liable to plaintiff in damages.

CATCHWORDS:
EQUITY [38], [44] - General principles - Fraudulent and innocent misrepresentation - The representation - Generally - Meaning of representation - Whether representation made in absolute terms that land could be developed by erection of four villas - Materiality, inducement and reliance upon representation - Extent of reliance on representation - TRADE AND COMMERCE [94], [136] - Misleading or deceptive conduct - Particular classes of conduct - Real estate transactions - Purchase of land for villa development - Whether representation made in absolute terms that land could be developed by erection of four villas - Enforcement and remedies - Actions for damages - Causation - Causal link between representation and loss - Extent of reliance on representation.

CASES CITED:
Butcher v Lachlan Elder Realty Pty Ltd (2004) 79 ALJR 308
Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458

PARTIES:
Graeme Arthur Vickers (P & XD)
Augusta Taccone (1D & 1XC)
Anthony Taccone (2D & 1XC)
Geraway Pty Limited (3D & 2XC)

FILE NUMBER(S):
SC 5866/02

COUNSEL:
A B S Franklin SC (P & XD)
A T McInnes QC then G Barry Hall QC and H J G Gulpers (1 & 2Ds & 1XCs)
S T White SC (3D & 2XC)

SOLICITORS:
Lane & Lane (P & XD)
J P Lawyers (1 & 2Ds & 1XCs)
Minter Ellison (3D & 2XC)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 31 MAY 2005

5866/02 GRAEME ARTHUR VICKERS v AUGUSTA TACCONE & ORS

JUDGMENT

1 HIS HONOUR: In this matter the plaintiff was the registered proprietor of a house property at 75 Westminster Road Gladesville (“the land”). He engaged the third defendant, a real estate agent, to sell the land for him. It is alleged that the agent orally and in a brochure represented to the first and second defendants that the land could be developed by the erection on it of four villas. Induced by this representation the first and second defendants on 9 March 2002 bought the land at public auction for $900,000 and signed a contract accordingly (“the contract”). The first and second defendants did not complete the contract and on 6 June 2002 purported to terminate the contract on the ground that the representation was untrue. On 7 June 2002 the plaintiff purported to terminate the contract and forfeit the deposit of $45,000.

2 The first and second defendants are brothers. The first defendant’s first name is stipulated in the statement of claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vickers v Taccone

Details

AGLC: Vickers v Taccone [2005] NSWSC 514
Case: [2005] NSWSC 514
Decision Date: 31 May 2005

CaseChat Overview and Summary

Vickers v Taccone is a decision of the Supreme Court of Queensland concerning a dispute between a buyer and a seller of land. The buyer, Vickers, sought damages for the seller, Taccone’s, alleged fraudulent and innocent misrepresentation regarding the suitability of the land for the development of four villas. The court was required to determine whether the representation made by Taccone regarding the land's suitability was an absolute term, whether the representation was material and induced reliance, and whether there was a causal link between the representation and Vickers’ loss.

The court first considered whether Taccone's representation was an absolute term that the land could be developed by the erection of four villas. The court found that the representation was not absolute but rather a statement of opinion. The court then assessed the materiality of the representation and whether it induced Vickers’ reliance. The court held that the representation was material and induced Vickers' reliance, as Vickers had relied on Taccone’s representation in deciding to purchase the land. The court also found that there was a causal link between the representation and Vickers’ loss, as Vickers would not have purchased the land if they had known that the representation was incorrect.

The court found that Taccone was liable for innocent misrepresentation but not for fraudulent misrepresentation. The court held that Taccone was liable for damages for the loss suffered by Vickers due to the innocent misrepresentation. The court awarded Vickers damages for the loss of the purchase price and costs incurred in purchasing the land. The court did not award damages for the loss of profits that Vickers would have made if the land had been suitable for the development of four villas, as the court found that such losses were too remote.

Orders