JAINRAN PTY LTD v BOYANA [2008] NSWSC 468

New South Wales Supreme Court

CITATION : JAINRAN PTY LTD v BOYANA [2008] NSWSC 468

HEARING DATE(S) : 5, 6, 7, 12, 13, 14, 17 March and 11 April 2008

JUDGMENT DATE : 15 May 2008

JURISDICTION : EQUITY

JUDGMENT OF : Bryson AJ

On the plaintiff's claim: (1) Give judgment for the plaintiff against the defendants for $150,000 with interest at the rates allowed on judgments from 23 September 2004 to the date of this order. (2) Order that the defendants pay the plaintiff's costs. On the First Cross-claim: (3) Dismiss the Cross-claim with costs. DECISION : On the Second Cross-claim: (4) Give judgment for the Second Cross-claimant against Boyana Pty Ltd for an indemnity against all damages, costs and interest payable by the second cross-claimant to the plaintiff. (5) Give judgment for the Second Cross-claimant against Boyana Pty Ltd for $53,350 for debt together with interest at the rates allowed on judgments from 23 September 2004 to the date of this order. (6) Give judgment for the Second Cross-claimant against Joseph Sgro for damages to be assessed. (7) Reserve liberty to apply with respect to the assessment of damages. (8) Order that the Cross-defendants pay the Cross-claimant's costs of the Second Cross-claim.

CATCHWORDS : VENDOR and PURCHASER – contract for sale of land subject to lease to Service Station – operation of misrepresentation stated in terms of contract and warranties implied under Conveyancing Act s 52A and Regulations to ground rescission – consideration whether contract disclosed adverse affectation (road widening proposal) – consideration of statement in contract that vendor not aware of "legal proceedings which might or will affect the property" when there was pending litigation by tenant claiming damages – held rescission effective, deposit recoverable. TRADE PRACTICES – Brochure given by Agent to Purchaser described property as outstanding investment, referred to rent and positive characteristics of tenant, did not disclose disputes and pending litigation with tenant who claimed he agreed to the rent under the influence of misrepresentations – earlier forms of Draft Contract contained notification of extended rent holiday granted to tenant in addition to rent holiday in lease – this generated inquiries from prospective purchasers and was withdrawn from Draft Contract given to Purchaser – numerous factual issues – held misleading conduct, damages being deposit paid to vendor and not recoverable awarded against principal of vendor and against Agent. Consideration of – nondisclosure as misrepresentation – Agent as mere conduit – puffery – operation of Proportional Liability in CLERP legislation which took effect after deposit was paid – numerous incidental issues.