McINTYRE v PERKES CARPENTER v PERKES [1989] NSWCA 142

McINTYRE v PERKES CARPENTER v PERKES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON (2) CJ, MAHONY (3) AND CLARKE (1) JJA 30 May 1989, 31 May 1989

[1989] NSWCA 142

Clarke JA There are two appeals before the court from judgments which Brownie J directed be entered and which arise out of the same transactions. In the first appeal Mr and Mrs McIntyre challenge the award of damages made in favour of each of the respondents in the sum of of $214,689. In the second appeal Mr Carpenter challenges an award of the same amount of damages in favour of each of the respondents.

Both appeals arise out of the circumstances surrounding the purchase by the respondents, in association with three other persons, Messrs Pettit, Landon and Davies, of land at Wilberforce on which there was erected the Tropicana Hotel-Motel, the Australiana Pioneer Village and some other buildings. The owner of the land was Mawsons Hotels Pty Ltd which was not a party to the original proceedings and is not a party to the present appeals. The total purchase price the land was $1,250,000 and of this amount $600,000 was advanced by the vendor which took a mortgage back from the purchasers and $200,000 was advanced by one of the appellants, Mrs McIntyre, on the security of a second mortgage.

Upon completion of the purchase the respondents and their joint venturers continued to conduct the businesses which had previously been run on the land including the business of a hotel/motel. They did not, however, do so successfully and in October 1982 Mawsons Hotels Pty Ltd re-took possession. Thereupon Mrs McIntyre sued the five purchasers to recover the sum of $200,000 which she had advanced and in due course obtained judgment. Her action, however, provoked a cross- claim from the present respondents in which they claimed damages for deceit against Mrs McIntyre and her husband. In addition they brought separate proceedings against Carpenter, an accountant who acted for the McIntyres, claiming damages in deceit and negligence. Both actions were heard together and in the ultimate Brownie J found for the respondents and directed the entry of the judgments I have already mentioned.