District Court
New South Wales
Medium Neutral Citation: Williams v Sutera [2012] NSWDC 163 Hearing dates: 17, 18 and 26 September 2012 Decision date: 28 September 2012 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the defendants.
(2) Judgment for the cross-claimants in the sum of $28,800.68.
(3) The parties to bring in Short Minutes of Order setting out the mathematically agreed total of interest on the judgment in the cross-claim.
(4) Plaintiff/cross-defendant pay the defendants/cross-claimants costs of these proceedings.
(5) Liberty to restore in relation to interest and costs.
(6) Exhibits retained for 28 days.
Catchwords: TORT - deceit - plaintiff leases service station from defendants - representations made as to age of underground petrol tanks - whether representations, if made, were relied upon - whether loss flowing from representations capable of being established - cross-claim by defendants for mesne profit, non-payment of outgoings and repairs Legislation Cited: - Cases Cited: Australian Securities and Investments Commission (ASIC) v Rich (2005) 218 ALR 764
Auyeung v Chan [1999] NSWCA 417
Bassett v Host [1982] 1 NSWLR 206
Chouman v Margules (1993) 17 MVR 144
Civil Service Co-Operative Society of Vic Ltd v Blyth (1914) 17 CLR 601
Derry v Peek [1886-90] All ER Rep 1
ET Petroleum Holdings Pty Ltd v Clarenden Pty Ltd [2005] NSWSC 435
Ford v Nagle [2004] NSWCA 33
Frankenberg v Famous Lasky Film Service Ltd [1931] 1 Ch 428
Ingot Capital Investments & Ors v Macquarie Equity Capital Markets (No 6) [2007] NSWSC 124
Jones v Dunkel (1959) 101 CLR 298
Jones v National Coal Board [1957] QB 55
LVMH Watch & Jewellery Australia Pty Ltd v Lassanah (New South Wales Court of appeal, Tobias and Young JJA, 4 March 2011, unreported)
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mercland Investment Group Pty Ltd v Duncalm Pty Ltd [2012] FCA 183
National Australia Bank v Pollak [2001] FCA 1408
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
R v Apostilides (1984) 154 CLR 563
RA & K Becker Pty Ltd v Cariste Pty Ltd (2001) 11 BPR 20,111
Re Gibson's Settlement Trusts [1981] Ch 179
Sharp v Rangott (2008) 246 ALR 84
Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324
Watson v Foxman (1995) 49 NSWLR 315
Whalan v Kogarah Municipal Council [2007] NSWCA 5
Wood v Balfour [2011] NSWCA 382Texts Cited: - Category: Principal judgment Parties: Plaintiff/Cross-Defendant: Paul Williams
First Defendant/First Cross-Claimant: Salvatore Sutera
Second Defendant/Second Cross-Claimant: Dora SuteraRepresentation: Plaintiff/Cross-Defendant: Mr R D Marshall
Defendants/Cross-Claimants: Mr A Autore (solicitor)
Plaintiff/Cross-Defendant: Autore & Associates
Defendants/Cross-Claimants: Colbron & Associates
File Number(s): 2011/124999 Publication restriction: None
Judgment
The defendants are the registered proprietors of land at 62 Allowrie Street, Jamberoo which, until 12 October 2004, was leased by a Mr John William Davis ("Mr Davis"). He ran an Ampol petrol station from these premises. In or about August 2004, Mr Williams, the plaintiff had discussions with Mr Davis about taking over the lease. This…
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- AGLC
- Williams v Sutera [2012] NSWDC 163
- Case
- [2012] NSWDC 163
- Decision Date
CaseChat Overview and Summary
In addressing these issues, the court found that the plaintiff did not establish that the alleged representations were made or that they were relied upon. The court concluded that the loss claimed by the plaintiff could not be shown to have flowed from any such misrepresentations. Regarding the cross-claim, the court found in favour of the defendants, awarding them $28,800.68 in damages for mesne profit, non-payment of outgoings, and repairs. The court also ordered that the parties were to bring in Short Minutes of Order detailing the agreed total of interest on the judgment for the cross-claim and that the plaintiff was to pay the defendants' costs of the proceedings. Finally, the court granted liberty to restore in relation to interest and costs, and ordered that exhibits be retained for 28 days.
Orders
Orders of the court
(1) Judgment for the defendants.
(2) Judgment for the cross-claimants in the sum of $28,800.68.
(3) The parties to bring in Short Minutes of Order setting out the mathematically agreed total of interest on the judgment in the cross-claim.
(4) Plaintiff/cross-defendant pay the defendants/cross-claimants costs of these proceedings.
(5) Liberty to restore in relation to interest and costs.
(6) Exhibits retained for 28 days.
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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