Lymquartz Pty Limited v 2 Elizabeth Bay Road Pty Limited [2007] NSWSC 457

New South Wales Supreme Court

CITATION : Lymquartz Pty Limited v 2 Elizabeth Bay Road Pty Limited [2007] NSWSC 457

HEARING DATE(S) : 13-15/11/06; 21-22/11/06

JUDGMENT DATE : 9 May 2007

JUDGMENT OF : Biscoe AJ

DECISION : Plaintiff's claim dismissed. Cross-claim for specific performance and enforcement of guarantees upheld.

CATCHWORDS : Trade Practices - claim of misleading or deceptive conduct in contravention of s 52 Trade Practices Act 1974 (Cth) - purchase of apartments in hotel undergoing redevelopment into apartment building - whether selling agent's representation that it would be a "one bedroom" apartment was misleading or deceptive because bedroom wall not fixed but sliding - whether selling agent represented that bedroom wall would be brick, that apartment would have a kitchen in a separate room and that all walls would be brick - whether "sense of space" statement in marketing brochure mere puffery or actionable as misleading or deceptive conduct.

Trade Practices Act 1974 (Cth), ss 52, 51A, 82, 87 LEGISLATION CITED : Fair Trading Act 1987 (NSW), ss 42, 68, 72 Conveyancing (Sale of Land) Regulation 2000 (NSW) Sch 3 Pt 1cl 1

Australian Competition and Consumer Commisison v Kaye [2004] FCA 1363 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Eighth SRJ Pty Ltd v Merity (1997) 7 BPR 15,189 CASES CITED : Overlook Management BV v Foxtel Management Pty Ltd [2002] NSWSC 17 Hanave Pty Ltd v LFOT Pty Ltd (1998) ATPR 41 – 658 Mitchell v Valherie (2005) 93 SASR 76 John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd (1993) ATPR 41 – 249 Morrow v Tucker [No 2] [2006] NSWSC 1358