Hosmer Holdings Pty Ltd & Ors v C.A.J. Investments Pty Ltd [1995] FCA 165

CATCHWORDS TRADE PRACTICES - claim for damages under s82 - purchase of property comprising shops - representations by purchaser about access by vendor after settlement to satisfy condition of development consent - whether refusal of access caused loss to vendor Trade Practices Act 1974, ss 52 and 82 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Barto v GPR Management Services Pty Ltd (1991) 105 ALR 389 Sellars v Adelaide Petroleum NL (1994) 120 ALR 16 Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 No. NG 882 of 1993 HOSMER HOLDINGS PTY LIMITED and others v C.A.J. INVESTMENTS PTY LIMITED

MOORE J SYDNEY 30 MARCH 1995

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 882 of 1993 ) GENERAL DIVISION ) BETWEEN: HOSMER HOLDINGS PTY LIMITED First Applicant JAMES LOURANDOS, STEPHANIA LOURANDOS, STAVROULA LOURANDOS, NICHOLAS JAMES LOURANDOS, and AIKATERINA LOURANDOS Second to Sixth Applicants AND: C.A.J. INVESTMENTS PTY LIMITED Respondent JUDGE: Moore J PLACE: Sydney DATE: 30 March 1995 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The application is adjourned. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 882 of 1993 ) GENERAL DIVISION ) BETWEEN: HOSMER HOLDINGS PTY LIMITED First Applicant JAMES LOURANDOS, STEPHANIA LOURANDOS, STAVROULA LOURANDOS, NICHOLAS JAMES LOURANDOS, and AIKATERINA LOURANDOS Second to Sixth Applicants AND: C.A.J. INVESTMENTS PTY LIMITED Respondent JUDGE: Moore J PLACE: Sydney DATE: 30 March 1995 REASONS FOR JUDGMENT This is an application under the Trade Practices Act 1974 ("TPA") brought by Hosmer Holdings Pty Ltd and James, Stephania, Stavroula, Nicholas and Aikaterina Lourandos ("the applicants") against CAJ Investments Pty Ltd ("the respondent"). Associated common law claims founded on alleged deceit and negligent misrepresentation and a claim based on an estoppel are also made in the application. The applicants seek damages and/or a mandatory injunction. At an early stage in the hearing objection was taken by the respondent to evidence in an affidavit of Nicholas Lourandos, which concerned the quantum of damages. That evidence was in a plainly inadmissible form which invited the objection taken. The evidence appeared to be the principal, if not only, evidence of the applicants which would have permitted the assessment of damages if liability was established. It was not admitted. A question then arose as to whether the applicants should be given an opportunity to put on further evidence on this issue. I determined that the appropriate course was to continue the hearing and deal only with the question of liability and whether an injunction should issue and, if necessary, there could be a further hearing dealing with the assessment of damages. Accordingly this judgment is confined as to the issues with which it deals. The facts The facts are generally uncontentious and emerge from affidavits of Mr Reid, the applicants' solicitor, and Mr Nicholas Lourandos filed on behalf of the applicants and an affidavit of Mr Lyons, solicitor, filed on behalf of the respondent as well as documents which were tendered. Mr Lyons' affidavit is a vehicle for proving certain documents and he had no involvement in the events to which this litigation relates. No evidence was led by the respondent from anyone who did. To the extent that I reserved on the admissibility, on the grounds of relevance, of any document I now refer to, I view it as relevant. Only Mr Reid was cross-examined. Much of the evidence was in a documentary form and much of that was correspondence. Generally it was admitted without objection. The proceedings concern the sale of land. The applicants owned land at Swansea in New South Wales which they wished to develop by constructing a building incorporating six shops. In March 1988 the City of Lake Macquarie ("the Council") notified them of its consent to a development application though the consent was subject to a number of conditions. One condition concerned car parking and it provided: "4. Car parking being provided on site in accordance with the following:- (i) Fourteen (14) spaces in accordance with Council's car parking code. (ii) Each space individually marked on the pavement. (iii)Separate off-street loading/unloading facility clear of the car parking area and driveways. (iv) Use of the fourteen (14) car parking spaces being ensured by way of subdivision and acquisition of the land and access ways or some alternative arrangement which will ensure legal occupancy of the car parking spaces and access ways. (v) A stop sign being provided at the exit of the site to Lake Road."