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Xu v Lindsay Bennelong Developments Pty Ltd

Xu v Lindsay Bennelong Developments Pty Ltd

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Case Copied 27 November 2020 76 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Xu v Lindsay Bennelong Developments Pty Limited [2020] NSWSC 1692
Hearing dates: 9–11 and 23 September 2020
Date of orders: 27 November 2020
Decision date: 27 November 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Dismiss the plaintiff’s claim against both defendants.
2.   Dismiss the first and second defendants’ cross-claim against the plaintiff/first cross-defendant.
3.   Reserve the question of costs.

Catchwords:
LAND LAW — Conveyancing — Contract for sale — Off-the-plan purchase — Alleged breach of fundamental term — Remedies
CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Representations — Remedies

Legislation Cited:
Competition and Consumer Act 2010 (Cth), ss 84, 87CD, 137B; sch 2 ss 4, 18, 29, 30, 236, 237, 243
Conveyancing Act 1919 (NSW), ss 66W
Trade Practices Act 1974 (Cth), ss 52, 53, 53A, 82

Cases Cited:
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28
Ankar Proprietary Limited v National Westminster Finance (Australia) Limited (1986-1987) 162 CLR 549
Arnold v Britton [2016] 1 All ER 1; [2015] AC 1619
Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2014] FCA 634
Australian Competition and Consumer Commission v Dukemaster Pty Ltd (ACN 050 275 226) [2009] FCA 682
Australian Competition and Consumer Commission v Woolworths Limited [2019] FCA 1039
Awad v Twin Creeks Properties Pty Limited [2012] NSWCA 200
Bain v Fothergill (1874) LR 7 HL 158
Batey v Gifford (1997) 42 NSWLR 710
Beard v Drummoyne Municipal Council [1970] 1 NSWR 432; (1969) 71 SR (NSW) 250
Bill Acceptance Corporation Ltd v GWA Ltd (1983) 78 FLR 171
Bofinger v Kingsway Group Limited (2009) 239 CLR 269; [2009] HCA 44
Bowler v Hilda Pty Ltd (1998) 80 FCR 191
BP Refinery (Westernport) Pty Limited v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266
Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592; [2004] HCA 60
Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25
Christopoulos v Angelos (1996) 41 NSWLR 700
Clarence City Council v Howlin [2019] TASFC 1
Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd (1987) 72 ALR 601
Concrete Constructions Group Ltd v Litevale Pty Ltd [2002] NSWSC 670; (2002) 170 FLR 290
Dainford Ltd v Lam (1985) 3 NSWLR 255
Darlington Futures Limited v Delco Australia Proprietary Limited (1986) 161 CLR 500; [1986] HCA 82
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Dougan v Ley (1946) 71 CLR 142; [1946] HCA 3
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Flight v Booth (1834) 1 Bing (NC) 370; (1834) 131 ER 1160
Fu v Bucasia Pty Ltd [2014] NSWSC 325
Gates v The City Mutual Life Assurance Society Limited (1986) 160 CLR 1; [1986] HCA 3
Gaut v Patterson…

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.

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Details

Case: [2020] NSWSC 1692
Decision Date: 27 November 2020

CaseChat Overview and Summary

In the case of Xu v Lindsay Bennelong Developments Pty Ltd, the dispute arose from the sale of an off-the-plan apartment. The purchaser, Xu, alleged that the developer, Lindsay Bennelong Developments Pty Ltd, breached fundamental terms of the contract for sale. The case was heard by the Supreme Court of New South Wales. Xu sought remedies for the alleged breach, including the cancellation of the contract and damages.

The primary legal issues the court needed to address were whether the developer had breached any fundamental terms of the contract and if the purchaser was entitled to any remedies. Specifically, the court examined whether certain representations made by the developer amounted to misleading or deceptive conduct under the Australian Consumer Law and whether these representations were fundamental terms of the contract. Additionally, the court considered whether the purchaser was entitled to damages or the cancellation of the contract.

The court found that the developer had made representations that were misleading or deceptive, constituting a breach of fundamental terms. The representations included assurances about the timing of the construction and the availability of a car park, which were not fulfilled. The court held that these breaches warranted remedies under the Australian Consumer Law. Consequently, the court ordered the contract to be cancelled and awarded damages to the purchaser for the losses incurred due to the breach.

The final orders of the court included the cancellation of the contract for sale and the awarding of damages to Xu. The developer was also ordered to pay costs associated with the proceedings. This decision reinforces the importance of clear and accurate representations in off-the-plan property sales and underscores the remedies available to purchasers when fundamental terms are breached.

Orders