NSW Caselaw
Reported Decision : 203 FLR 179
New South Wales Supreme Court
CITATION : Bonett v The Barron and Dowling Property Group Pty Limited & Anor [2006] NSWSC 975 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S) : 21-23 August 2006
JUDGMENT DATE : 27 September 2006
JUDGMENT OF : Bergin J
DECISION : Plaintiff entitled to declarations of contravention and damages.
CATCHWORDS : [MISLEADING OR DECEPTIVE CONDUCT] - Sale of Property for $11 million falsely represented to be 1,366 square metres (only 1,108 square metres) with waterfrontage, foreshore and uninhibited access to the Harbour (no waterfrontage, foreshore or uninhibited access) - Property as sold valued at $11 million at time of exchange and $10.9 million at time of settlement - [DAMAGES] - Whether plaintiff entitled to damages calculated on pro-rata basis per square metre - Whether plaintiff entitled to damages equivalent to value of "missing" foreshore area with attributes of waterfrontage and access - "Rule" in Potts v Miller only a guide - Time of assessment of loss or damage - Whether assessment of loss or damage should be on the basis of the difference between the value of the Property as purchased and the value it would have had if the representations had been true.
LEGISLATION CITED : Fair Trading Act 1987 Trade Practices Act 1974 (Cth)
Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 94 ALR 719 Clark v Urquhart; Stracey v Urquhart [1930] AC 28 Havyn Pty Ltd v Webster [2005] NSWCA 182 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526 Marks v GIO Australia Holdings Limited (1998) 196 CLR 494 CASES CITED : McCullagh v Lane Fox & Partners Ltd [1994] 1 EGLR 48; [1996] 1 EGLR 35 Murphy v Overton Investments Pty Limited (2004) 216 CLR 388 Potts v Miller (1940) 64 CLR 282 Saunders v Edwards [1987] 1 WLR 1116 Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997] AC 254 Sumy Pty Ltd v Southcorp Wines Pty Ltd (2004) 12 BPR 22,549 Tefbao Pty Ltd v Stannic Securities Pty Ltd (1995) ATPR 41-391
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