Brasington v Overton Investments Pty Ltd [2002] FCA 1495

FEDERAL COURT OF AUSTRALIA

Brasington v Overton Investments Pty Ltd [2002] FCA 1495 RITA BRASINGTON v OVERTON INVESTMENTS PTY LTD & ANOR N 878 OF 1999 EMMETT J 28 NOVEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N878 OF 1999

BETWEEN: RITA BRASINGTON

APPLICANT

AND: OVERTON INVESTMENTS PTY LIMITED

FIRST RESPONDENT

JOHN EDWARD JAMES

SECOND RESPONDENT

JUDGE: EMMETT J

DATE: 28 NOVEMBER 2002

PLACE: SYDNEY

REASONS FOR RULING AND FINDINGS 1 In 1994 the first respondent, Overton Investments Pty Limited ("Overton"), was the owner and manager of the Heritage Retirement Village located at 33 Bernard Road, Padstow Heights ("the Heritage Village"). At that time, the second respondent, John Edward James ("Mr James"), was the managing director of Overton. 2 By lease dated 6 June 1994 ("the Lease"), Overton granted to the applicant, Rita May Brasington ("Mrs Brasington") and her husband, Sydney James Phillip Brasington ("Mr Brasington"), a term of 99 years in respect of Unit 65 in the Heritage Village ("Unit 65"). 3 Mrs Brasington commenced this proceeding on 30 August 1999. In the proceeding, Mrs Brasington complains about the circumstances in which she and Mr Brasington entered into the Lease. All of her complaints arise out of alleged failure on the part of Overton to make full disclosure concerning the extent of the liability of Mr and Mrs Brasington under the Lease to contribute to the expenses of operating the Heritage Village. Mr Brasington died on 29 April 1995 and the proceeding has been conducted on the basis that Mrs Brasington has succeeded to any rights that may have been vested in Mr Brasington in relation to the subject matter of the proceeding. 4 Prior to the commencement of the proceeding, there had been a history of litigation between Overton and the persons who are lessees of units in the Heritage Village ("Lessees"). The history of the litigation is summarised in my reasons in Murphy v Overton Investments Pty Limited [2000] FCA 801 and [2001] FCA 1725.