Bullabidgee Pty Ltd v McCleary; McCleary v Bullabidgee Pty Ltd [2010] NSWSC 145

New South Wales Supreme Court

CITATION : Bullabidgee Pty Ltd v McCleary; McCleary v Bullabidgee Pty Ltd [2010] NSWSC 145

HEARING DATE(S) : 16, 17, 18 & 23 March 2009

JUDGMENT DATE : 4 March 2010

JURISDICTION : Equity

JUDGMENT OF : Brereton J

DECISION : Vendors engaged in misleading and deceptive conduct in contravention of Fair Trading Act, s 42. Purchasers did not rely on contravening conduct. Had they done so, statutory avoidance not available or would have been declined. Vendors effectively terminated for Purchasers' default. Vendors entitled to damages for breach of contract and for trespass. Decline to order return of deposit, under s 55(2A). Direct that defendants (Vendors) bring in short minutes to give effect to this judgment.

CATCHWORDS : CONVEYANCING – contract for sale of land – where purchaser claims entry into contracts procured by misrepresentation – where purchaser found not to have relied on contravening conduct - whether contravening conduct productive of loss or damage - where purchaser affirms contract – effect of affirmation on statutory remedies - whether contract should be avoided under Fair Trading Act, s 72 – where purchaser remained in possession following termination by vendor for default – assessment of damages for breach of contract – assessment of damages for trespass - extent to which credit must be given for forfeited deposit – whether deposit should be returned under Conveyancing Act, s 52(2A). - TRADE PRACTICES – contract for sale of land – where purchaser claims entry into contracts procured by misrepresentation – where purchaser found not to have relied on contravening conduct - whether contravening conduct productive of loss or damage - where purchaser affirms contract – effect of affirmation on statutory remedies - whether contract should be avoided under Fair Trading Act, s 72.