Lescap Group Pty Ltd v Pacific Resort Holding Pty Ltd [2012] NSWSC 580

Supreme Court New South Wales

Medium Neutral Citation: Lescap Group Pty Ltd v Pacific Resort Holding Pty Ltd [2012] NSWSC 580 Hearing dates: 23-26 May 2011; 8 and 9 September 2011 and further written submissions on 25 May 2012 Decision date: 31 May 2012 Before: White J Decision: Defendant to bring in short minutes of order in accordance with reasons. Catchwords: VENDOR AND PURCHASER - contract for sale of hotel - put and call option - licence deed entered into by which company associated with the purchaser was given licence to operate hotel - licence deed and option deed issued on same date - vendor exercised put option - notice to complete served by vendor - notice of rescission issued by purchaser - alleged breach of warranties entitling rescission - construction of warranties

VENDOR AND PURCHASER - whether notice to complete invalid - whether purported rescission of contract was repudiation entitling vendor to terminate contract

EVIDENCE - admissibility - whether evidence that assets not located at hotel at date of option deed precluded by recitals in licence deed and option deed - held evidence admissible

CONTRACT - contract for sale of hotel - alleged misleading and deceptive conduct - representation made in recital to licence deed - vendor did not rely on recital - vendor not misled Legislation Cited: Trade Practices Act 1974 (Cth) Fair Trading Act 1987 Civil Procedure Act 2005 Cases Cited: Battini v Gye [1876] 1 QBD 183 L Schuler AG v Wickman Machine Tool Sales Limited [1974] AC 235 McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 Jireh International Pty Ltd t/as Gloria Jean's Coffee v Western Export Services Inc [2011] NSWCA 137 Bonython v The Commonwealth (1948) 75 CLR 589 Dahl v Nelson (1881) 6 App Cas 38 Currie v Dempsey (1967) 69 SR (NSW) 116 Gardiner v Agricultural and Rural Finance Pty Ltd [2007] NSWCA 235 Lantry v Tomule [2007] NSWSC 81 Sargent v ASL Developments Limited (1974) 131 CLR 634 Immer (No 145) Pty Limited v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26 Moratic Pty Ltd v Gordon [2007] NSWSC 5; (2007) Aust Contract R 90-255 (89,904); NSW ConvR 56-172 (56,205) Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; (2007) 69 NSWLR 603 MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39 Texts Cited: K R Handley, "Estoppel by conduct and election", Thomson Sweet & Maxwell 2006 ed Peter Butt, Land Law, 6th ed Lawbook Co Carter, Breach of Contract, The Law Book Co Ltd, 2nd ed Category: Principal judgment Parties: Lescap Group Pty Ltd (Plaintiff and 2nd Cross-Defendant) Pacific Resort Holding Pty Ltd (Defendant and Cross-Claimant) Lescap Group Operations Pty Ltd (1st Cross-Defendant) Benjamin Saul Caplan (3rd Cross-Defendant) Representation: Counsel: R Beech-Jones SC with J Kay Hoyle (Plaintiff) M Wigney & J Kay Hoyle (further written submissions) B Rayment QC with A Ogborne (Defendant) I Griscti (2nd & 3rd Cross-Defendants) Solicitors: Somerset Ryckmans (Plaintiff and Cross-Defendants) CFC Lawyers (Defendant and Cross-Claimant) File Number(s): 2008/280794