Margaris v Brahmbhatt [2009] NSWDC 137

New South Wales District Court

CITATION: Margaris v Brahmbhatt [2009] NSWDC 137

HEARING DATE(S): 11 - 12 June 2009

JUDGMENT DATE: 19 June 2009

JURISDICTION: Civil

JUDGMENT OF: Goldring DCJ

DECISION: 1. Verdict for the defendants in the plaintiff's claim. 2. Verdict for the cross claimants against the cross defendant.

CATCHWORDS: CONTRACTS - misrepresentation - rescission - Contracts Review Act - unfair contracts - Fair Trading Act - misleading and deceptive conduct

Contracts Review Act 1980 LEGISLATION CITED: Fair Trading Act 1987 Conveyancing Act 1919 Cheques Act 1986 (Cth)

Taylor v Johnson (1983) 151 CLR 422 Watson v Foxman (2000) 49 NSWLR 315 CASES CITED: Clancy v Prince [2001] NSWSC 85 Commercial Banking Co of Sydney Ltd v R H Brown & Co (1972) 126 CLR 337 Oraka Pty Ltd v Leda Holdings Ltd (1997) ATPR 41-558 Derek v Peek (1889) 14 App Cas 337

Zois Margaris (Plaintiff) PARTIES: Rajesh Muljibhai Brahmbhatt (First Defendant) Sheela Rajesh Brahmbhatt (Second Defendant) Santosheema Pty Limited (Third Defendant)

FILE NUMBER(S): 2734 of 2008

COUNSEL: S J Walsh (Plaintiff) B K Ralston (First, Second and Third Defendant)

SOLICITORS: Legal & Company Solicitors (Plaintiff) B Hayward & Co (First, Second and Third Defendant)

JUDGMENT

1 HIS HONOUR: These proceedings arise out of events leading to, including and following the auction sale of a property at 183 Queens Rd, Connells Point, ("the property") on 1 March 2008. On that date, the first defendant, Dr Rajesh Brahmbhatt ("Rajesh"), and the second defendant, his wife, Dr Sheela Brahmbhatt ("Sheela") signed a document purporting to be a contract for the sale of the property from the plaintiff, Mr Zois Margaris. The plaintiff sues the first and second defendant for the amount of the deposit payable under the contract, and the third defendant, a company controlled by Rajesh, for the amount of a cheque issued by it in favour of the plaintiff's agent for an identical sum. The defendants have cross-claimed, alleging that the plaintiff and his agents have engaged ion misleading or deceptive conduct. As I understand it, I should consider the cross-claim only in the event that I find for the plaintiff on the claim.