Eddie Michael Awad & anor v Twin Creek Properties Pty Ltd [2011] NSWSC 923

Supreme Court New South Wales

Medium Neutral Citation: Eddie Michael Awad & anor v Twin Creek Properties Pty Ltd [2011] NSWSC 923 Hearing dates: 27, 28, 29, and 30 June 2011 Decision date: 30 June 2011 Jurisdiction: Equity Division Before: Brereton J Decision: Defendant to pay plaintiffs $75,000. Defendant to pay 50 percent of plaintiffs' costs. Catchwords: TRADE PRACTICES - Misleading and deceptive conduct - representations made in relation to future matters - effect of (CTH) Trade Practices Act s 51A - where corporation makes representation in relation to future matters and does not have reasonable grounds to make representation, representation presumed to be misleading - evidential onus on defendant to establish it had reasonable grounds - once defendant adduces such evidence onus falls on plaintiff to establish on balance of probabilities that grounds were not reasonable - reasonable grounds in relation to future matters involve an intention on part of representor to perform the representation and an ability to perform the representation - defendant had intention but did not have ability at time made representation to construct hotel and have certain hotel chain operate hotel - representation misleading and deceptive. TRADE PRACTICES - Misleading and deceptive conduct - reliance on representation by plaintiffs to purchase property - first plaintiff asserts would not have purchased property but for representation - post facto subjective statements inherently unreliable - need to examine objective indicia as to whether plaintiff would have purchased property but for representation - representation influenced decision to purchase property but not decisive factor. TRADE PRACTICES - Relief for misleading and deceptive conduct - plaintiff seeks order to rescind contract - where representation not decisive in plaintiff entering into contract, not appropriate to order rescission - representation affected purchase price - damages awarded commensurate to impact of representations on purchase price. CIVIL LIABILITY - Defences - proportionate liability - plaintiffs' solicitor said not to have acted with due competence and skill in advising plaintiffs about purchase - claim an apportionable claim under (NSW) Civil Liability Act - solicitor a concurrent wrongdoer - liability of solicitor assessed at one-third. Legislation Cited: (NSW) Civil Liability Act 2002, s 34, s 35 (NSW) Civil Procedure Rules 2005, r 42.34 (CTH) Trade Practices Act 1974, s 51A, s 52, s 53A, s 82, s 84 s 87 Cases Cited: Adelaide Petroleum NL v Poseidon Ltd (1988) ATPR 40-901 Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 55 ALR 25 Gould v Vaggelas (1984-1985) 157 CLR 215 Kayteal Pty Ltd v John Joseph Dignan & ors [2011] NSWSC 197 Sykes v Reserve Bank of Australia (1998) 88 FCR 511 Category: Principal judgment Parties: Eddie Michael Awad (first plaintiff) Karen Elizabeth Awad (second plaintiff) Twin Creeks Properties Pty Ltd (defendant) Representation: Counsel: CJ Birch SC and DS Wienberger (plaintiffs) J Robson SC and D Healey (defendants) Solicitors: Thurlow Fisher Solicitors (plaintiff) Surry Partners Lawyers Pty Ltd (defendant) File Number(s): 2009/291401