CH Real Estate Pty Ltd v Jainran Pty Ltd; Boyana Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37

New South Wales Court of Appeal

CITATION: CH Real Estate Pty Ltd v Jainran Pty Ltd; Boyana Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37

HEARING DATE(S): 10 June 2009

JUDGMENT DATE: 1 April 2010

JUDGMENT OF: Beazley JA at [1]; Basten JA at [27]; Young JA at [164]

(1) In the appeal of Boyana and Mr Sgro against Jainran and CH Real Estate (40248/08): (a) allow the appeal in part, including that relating to the interlocutory orders against Mr Sgro, the subject of leave granted during the hearing; (b) set aside orders (5), (6), (7) and (8) made in the Equity Division on 15 May 2009; (c) in lieu of order (8), order that Boyana and Mr Sgro pay 50% of CH Real Estate's costs of its cross-claim; DECISION: (d) otherwise, dismiss the appeal; (e) order that the appellants pay Jainran's costs of the appeal; (f) order that the appellants pay 2/3rds of CH Real Estate's costs of the appeal. (2) In the appeal of CH Real Estate against Jainran (40247/08): (a) dismiss the appeal; and (b) order that the appellant pay the respondent's costs of the appeal.

CATCHWORDS: CONTRACT- rescission- misrepresentations- whether purchaser for sale of land entitled to rescind. CONVEYANCING- whether adverse affectation sufficiently disclosed- when purchaser may be said to be unaware of affectation- consequences of false answer to requisition. PROFESSIONS AND TRADES- estate agent- commission- absence of signed contract at trial- significance- sale not completed- whether agent entitled to commission. TORT- duty of care- whether vendor owed estate agent duty with respect to the provision of information for preparing sale brochure- whether commercial property agent could be considered "vulnerable". TRADE PRACTICES- false and misleading conduct- involvement of estate agent in producing brochure principally from information obtained from client- whether agent a mere conduit or liable as principal- whether agent entitled to indemnity from client- whether sole director of corporate client liable as accessory- Trade Practices Act 1974 (Cth), ss 52, 75B.