Castle Constructions P/L v Fekala P/L & Ors [2001] NSWSC 659

New South Wales Supreme Court

CITATION : Castle Constructions P/L v Fekala P/L & Ors [2001] NSWSC 659 revised - 3/08/2001 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3812/01 HEARING DATE(S) : 01/08/01 JUDGMENT DATE : 1 August 2001

PARTIES : Castle Constructions Pty Limited (ACN 001 602 188) (Plaintiff) Fekala Pty Limited (ACN 001 321 946) & others (Defendants) JUDGMENT OF : Santow J

COUNSEL : P P O'Loughlin (Plaintiff) M W Young (Defendants) SOLICITORS : Day Dockrill (Plaintiff) CATCHWORDS : EQUITY — Procedure — Misleading and deceptive conduct under Trade Practices Act — Injunctive relief denied where its grant depends on final relief based on disappointed expectations where such relief not available. LEGISLATION CITED : Trade Practices Act s82; s87 CASES CITED : Gates v City Mutual Life Assurance Ltd (1986) 160 CLR 1 affirming the earlier decision in the Federal Court (1983) 68 FLR 101 DECISION : Plaintiff's Notice of Motion so far as paragraph 3 is dismissed. Plaintiff to pay Defendants' costs.

REVISED — 3 August, 2001 IN THE SUPREME COURT OF NEW SOUTH WALES IN EQUITY

SANTOW J

No. 3812/01 Castle Constructions Pty Limited (ACN 001 602 188) Plaintiff Fekala Pty Limited (ACN 001 321 946) & others Defendants

JUDGMENT — ex tempore 1 August 2001 1 This is an urgent application for interlocutory relief by way of an injunction restraining the carrying out of an auction of certain plant and equipment associated with a hospital. That hospital was purchased by the Plaintiff at an auction. 2 The Plaintiff proffers an undertaking as to damages. It relies upon four representations which are identified in the chronology below and which for present purposes I may treat as made out to the level required for interlocutory relief. CHRONOLOGY DATE EVENT 2 June 2001 Lahoud sees advertisement and notes that property advertised on the basis, "occupy or convert" Representation 1 4 June 2001 Lahoud receives copy draft contract. It contains on the first page the statement relating to the property, "The land the improvements, all fixtures and the inclusions but not the exclusions." He checked and observed that there were no exclusions in the exclusions box also on the first page. Representation 2 21 June 2001 Matthews of Ray White tells Lahoud that the property was fully equipped as a private hospital, that it had a valuation of in excess of $5 million and that it had equipment worth in excess of $1 million. Representation 3