Awad v Twin Creeks Properties Pty Limited [2012] NSWCA 200

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Awad v Twin Creeks Properties Pty Limited [2012] NSWCA 200 Hearing dates: 12 June 2012 Decision date: 03 July 2012 Before: Allsop P at [1] Macfarlan JA at [48] Sackville AJA at [49] Decision: 1.Appeal dismissed with costs. 2.Cross-appeal allowed. 3.Set aside the orders made by the Supreme Court on 30 June 2011 and entered on 4 July 2011 and in lieu thereof order that judgment be entered for the defendant and that the plaintiffs pay the defendant's costs. 4.Cross-respondents pay the cross-appellant's costs of the cross-appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TRADE PRACTICES - consumer protection - misleading or deceptive conduct - future matters - purchase of residential lot in country club development - representations orally and in promotional material as to number and size of lots - representations as to construction and management of on-site hotel resort - intention and financial capacity of developer - planning approval - reasonable grounds for making representations

TRADE PRACTICES - consumer protection - misleading or deceptive conduct - remedies - damages and rescission - difficulty in ascribing monetary value to material inducement - availability of rescission Legislation Cited: Trade Practices Act 1974 (Cth) Cases Cited: Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353 Bullabidgee Pty Ltd v McCleary [2011] NSWCA 259 Henville v Walker [2001] HCA 52; 206 CLR 459 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; 210 CLR 109 Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4; 184 CLR 281 Marks v GIO Australia Holdings Ltd [1998] HCA 69; 196 CLR 494 McGrath v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2; 165 FCR 230 Murphy v Overton Investments Pty Ltd [2004] HCA 3; 216 CLR 388 North East Equity Pty Ltd v Proud Nominees Pty Ltd [2012] FCAFC 1; 285 ALR 217 Category: Principal judgment Parties: Eddie Michael Awad (First Appellant/First Cross-Respondent) Karen Elizabeth Awad (Second Appellant/Second Cross-Respondent) Twin Creeks Properties Pty Limited (Respondent/Cross-Appellant) Representation: Counsel: C J Birch SC/D S Weinberger (Appellants/Cross-Respondents) J E Robson SC/D G Healey (Respondent/Cross-Appellant) Solicitors: Thurlow Fisher Solicitors (Appellants/Cross-Respondents) Surry Partners Lawyers Pty Ltd (Respondent/Cross-Appellant) File Number(s): 2009/291401 Decision under appeal Citation: [2011] NSWSC 923 Date of Decision: 2011-06-30 00:00:00 Before: Brereton J File Number(s): 2009/291401