Bennett v Elysium Noosa Pty Ltd. (in liq) [2012] FCA 211

FEDERAL COURT OF AUSTRALIA

Bennett v Elysium Noosa Pty Ltd. (in liq) [2012] FCA 211 Citation: Bennett v Elysium Noosa Pty Ltd. (in liq) [2012] FCA 211

Parties: LUKE ANTHONY BENNETT v ELYSIUM NOOSA PTY LTD. (ACN 101 485 634) (IN LIQUIDATION), CONSOLO LTD (ACN 000 022 266), PEARSON PROPERTY GROUP (NOOSA) PTY LIMITED (ACN 112 256 612), PEARSON PROPERTY GROUP PTY LIMITED (ACN 076 423 268) and CONSOLO PROPERTY PTY. LTD. (ACN 093 500 059)

File number: QUD 171 of 2010

Judge: REEVES J

Date of judgment: 9 March 2012

Corrigendum: 12 September 2012

Catchwords: TRADE AND COMMERCE – s 52 Trade Practices Act 1974 (Cth) – pre-contract representations – sale of lot in Community Title Scheme – facilities to be provided as part of Scheme – Scheme – whether misleading or deceptive representations made – conduct likely to mislead or deceive – implied representations – conveying something more – whether lead into error – content and circumstances of conduct TRADE AND COMMERCE – s 53A(1)(b) Trade Practices Act 1974 (Cth) – false or misleading representations in connection with the sale of an interest in land –– sale of lot in Community Title Scheme – false or misleading representations in connection with facilities associated the land – common property TRADE AND COMMERCE – s 51A Trade Practices Act 1974 (Cth) – misleading representations as to future matters – sale of lot in Community Title Scheme – facilities to be provided as part of Scheme – reasonable grounds for making – evidence to the contrary – operation of deeming provision in s 51A(2) – whether misleading under s 51A(1) TRADE AND COMMERCE – s 84(2) Trade Practices Act 1974 (Cth) – misrepresentations by sales agents – sale of lot in Community Title Scheme – conduct engaged in on behalf of corporation – conduct engaged in as part of central and main part of the business, affairs and activities of corporation – at the behest of – director and agent of corporations giving direction – joint venture TRADE AND COMMERCE – s 82(1) Trade Practices Act 1974 (Cth) – damages – quantum – loss claimed for being induced to enter contract – sale of lot in Community Title Scheme – loss assessed at date of acquisition – consideration of common approach and alternative approach – true value of asset acquired – onus of proof TRADE AND COMMERCE – s 87CB(1) Trade Practices Act 1974 (Cth) – apportionment – claims for damages under s 82 and 87 – contraventions of s 52 and 53A – whether apportionable claims REAL PROPERTY – Community Title Schemes – s 223(3) Body Corporate Community Management Act 1997 (Qld) – seller's warranties – material prejudice to buyer – breach of seller's warranty – disclosure statement