Young v Coupe [2004] NSWSC 999

New South Wales Supreme Court

CITATION : Young v Coupe [2004] NSWSC 999 HEARING DATE(S) : 09/06/04, 10/06/04, 11/06/04, 15/06/04, 16/06/04, 17/06/04, 18/06/04, 28/06/04 JUDGMENT DATE : 29 October 2004

JUDGMENT OF : White J DECISION : 1. Refuse leave to amend the Second Further Amended Statement of Claim; 2. Dismiss the balance of the plaintiffs' claims for relief against the defendants; 3. On the third defendant's first cross-claim: (i.) declare that the contract dated 19 June 2001 between the cross-claimant and the cross-defendants for the purchase of the property known as 21-69 Regent Street Redfern was terminated by the cross-claimant on 8 October 2001 and the cross-claimant was discharged from further performance thereof; (ii.) declare that the cross-claimant is entitled to retain the deposit of $385,000; (iii.) direct that judgment be entered for the cross-claimant against the cross-defendants in the sum of $385,000 together with interest at the rates prescribed from time to time pursuant to s 94 of the Supreme Court Act 1970 from 5 October 2001 to the date of this judgment. 4. Order that the plaintiffs pay the defendants' costs of the proceedings including the cross-claimant's costs of the first cross-claim; 5. The exhibits may be returned after 28 days.

CATCHWORDS : Vendor and Purchaser - Existence of a contract - Whether a valid exchange occurred - Authority of agent to change contract so as to have identical counterparts - Intention of parties - Post-contractual conduct indicating existence of contract. - +Misleading and deceptive conduct - Whether purchaser entitled to rescind for misrepresentation - Whether representations made - Whether reliance upon alleged misrepresentation - Claim for repayment of deposit - Vendors claim for liquidated damages.Agent and Principal - Whether agent made false and misleading representations to induce principal to enter into contract - Whether agent owed duty to assess reasonableness of price paid - Whether agent negligent.No question of principle. Conveyancing Act 1919 (NSW) Trade Practices Act 1974 (Cth) LEGISLATION CITED : Fair Trading Act 1987 (NSW) Corporations Act 2001 (Cth) Supreme Court Act 1970 (NSW) Sindel v Georgiou (1984) 154 CLR 661 Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 Barrier Wharfs v W Scott Fell & Co Ltd (1908) 5 CLR 647 CASES CITED : B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Gould v Vaggelas (1985) 157 CLR 215 Kevin Young & Anor PARTIES : v Paul Coupe & 4 Ors FILE NUMBER(S) : SC 2947/02 Plaintiffs: Mr I M Khan, Mr P Menadue COUNSEL : 1st & 2nd Defendants: Mr G Ellis 3rd to 5th Defendants: Mr S Epstein SC, Mr C Dimitriadis Plaintiff: David Geddes Solicitor SOLICITORS : 1st & 2nd Defendants: Colin Biggers & Paisley 3rd to 5th Defendants: Baron & Associates Solicitors