Webster v Havyn Pty Ltd [2004] NSWSC 227

Reported Decision : (2004) Aust Contract Reports 90-197 (2004) ATPR (Digest) 46-249

New South Wales Supreme Court

CITATION : Webster v Havyn Pty Ltd [2004] NSWSC 227 HEARING DATE(S) : 23 to 25 March, 2004 JUDGMENT DATE : 26 March 2004 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Declaration that Plaintiff validly rescinded contract for sale; deposit to be repaid under s.55(2A) Conveyancing Act; Defendant's Cross Claim for damages for misrepresentation/misleading or deceptive conduct dismissed.

CATCHWORDS : CONTRACT - SALE OF LAND - TIME OF ESSENCE - MISREPRESENTATION - contract for sale of land alleged to have been procured by vendor's misrepresentation as to floor area of building - purchaser affirmed contract after discovering alleged misrepresentation - purchaser unable to find purchase money in time for completion - whether vendor not entitled to rescind in reliance upon notice to complete by reason of original misrepresentation inducing contract. - HELD: Vendor validly rescinded - MISREPRESENTATION - Vendor's agent states in flyer approximate floor area of flats - qualifications at foot of both pages of flyer to the effect that measurements believed correct but could not be guaranteed and person should make own enquiries - whether statements as to area could be read in isolation from rest of document - whether representation made as to floor area or as to belief - CAUSATION - Defendant proposed costly redevelopment of building - relied on statement in flyer as to approximate floor area without paying attention to statements that measurements could not be guaranteed and that people should make own enquiries - Defendant made no enquiries - whether Defendant's loss caused by misrepresentation or by Defendant's failure to take sufficient care for its own interests - DEPOSIT - FORFEITURE - contract validly rescinded by vendor - forfeited deposit more than twice vendor's loss suffered on resale - hardship to purchaser - whether relief should be granted under s.55(2A) Conveyancing Act. Conveyancing Act 1919 (NSW) - s.55(2A) LEGISLATION CITED : Fair Trading Act 1987 (NSW) - s.42 Strata Schemes (Freehold Development) Act 1973 (NSW) - Louis Dreyfus & Cie v Parnaso Cia Naviara SA (The Dominator) [1960] 2 QB 49 - Elders Trustee and Executor Co Ltd v E.G. Reeves Pty Ltd (1987) 78 ALR 193 - Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 - Hasanovic v Polistena [1982] NSW Conv R 55-078 - Lubidineuse v Bevanere Pty Ltd (1984) 3 FCR 1 CASES CITED : - Lucas & Tait (Investments) Pty Ltd v Victoria Securities Ltd [1973] 2 NSWLR 268 - O'Brien v Smolonogov (1983) 53 ALR 107 - Redgrave v Hurd (1881) 20 Ch D1 - Stern v McArthur (1988) 165 CLR 489 -Tanwar Enterprises Pty Ltd v Cauchi (2003) 77 ALJR 1853 - Wilson v Kingsgate Mining Industries Pty Ltd [1973] 2 NSWLR 713 PARTIES : Renata Marina Paola Webster - Plaintiff Havyn Pty Ltd - Defendant FILE NUMBER(S) : SC 5941/02 COUNSEL : R.W. Tregenza - Plaintiff J. Merkel - Defendant SOLICITORS : Biddulph & Salenger - Plaintiff Whittens - Defendant