NSW Caselaw
Reported Decision : (2005) ATPR (Digest) 46-266
New South Wales Court of Appeal
CITATION: Havyn Pty Ltd v Webster [2005] NSWCA 182
HEARING DATE(S): 22 February 2005
JUDGMENT DATE: 26 May 2005
JUDGMENT OF: Santow JA at 1; Tobias JA at 180; Brownie AJA at 181
DECISION: (1) The appeal is allowed in part. ; (2) The cross-appeal is dismissed. ; (3) Set aside Orders 2 and 3 made by Palmer J on 3 August 2004, and in lieu thereof order that the Defendant pay to the Plaintiff damages for breach of the Contract for Sale of Land dated 19 September 2002, to be ascertained by the Master upon enquiry. ; (4) Vary Order 6 made by Palmer J on 3 August 2004 by deleting therefrom the reference to Order 2. ; (5) Set aside Order 7 made by Palmer J on 3 August 2004, and in lieu thereof order that judgment be entered for the Cross-Claimant in the sum of $92,739 together with interest pursuant to the Supreme Court Act. ; (6) Set aside Order 7A made by Palmer J on 3 August 2004. ; (7) Each party is to pay its or her own costs both on the appeal and in the court below.
CATCHWORDS: CONTRACT - misrepresentation by vendor in sales brochure as to size of property - standard contract for sale of land - contract affirmed by purchaser after discovering misrepresentation - subsequent failure to complete by purchaser not caused by misrepresentation - whether vendor entitled to rely on Notice to Complete and terminate contract - entitlement to damages for breach of contract - TRADE PRACTICES - s42 Fair Trading Act 1987 (NSW) - whether misrepresentation misleading and deceptive conduct - effect of word "approximately" in representation - effect of disclaimer on representation - whether conduct in "trade or commerce" - whether causation established - whether conduct of representee so unreasonable as to sever the chain of causation - damages for misleading and deceptive conduct - PROPERTY - EQUITY - s55(2A) Conveyancing Act 1919 (NSW) - deposit forfeited by vendor after failure by purchaser to complete contract - whether proper to exercise statutory discretion to order the deposit to be returned - factors relevant to exercise of discretion
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