Leonards Pharmacy Pty Ltd v Double Up 888 Pty Ltd [2018] NSWSC 974

Supreme Court New South Wales

Medium Neutral Citation: Leonards Pharmacy Pty Ltd v Double Up 888 Pty Ltd [2018] NSWSC 974 Hearing dates: 19, 20, 24 April, 28 May 2018 Decision date: 03 July 2018 Jurisdiction: Equity Before: Emmett AJA Decision: Direct the plaintiff to file short minutes of orders to reflect the conclusions reached in the reasons of 3 July 2018. Catchwords: TRADE AND COMMERCE – contract for sale of a pharmacy – whether purchaser entitled to rescind – whether purchaser discharged obligation to do all things and make all applications and returns necessary to obtain approval under s 90 of the National Health Act 1953 (Cth) – whether purchaser used best endeavours to ensure that application was determined expeditiously – whether vendor entitled to forfeit deposit

TRADE AND COMMERCE – misleading and deceptive conduct – whether vendor made positive representations that he was not aware of an application for a second pharmacy in Coonamble – whether vendor remained silent as to his knowledge Legislation Cited: Australian Consumer Law (Sch 2, Competition and Consumer Act 2010 (Cth)) Competition and Consumer Act 2010 (Cth), Sch 2 Conveyancing Act 1919 (NSW), s 55(2A) National Health Act 1953 (Cth), ss 90, 98 Cases Cited: Brown v Heffer (1967) 116 CLR 344 Butt v O'Dwyer (1952) 87 CLR 267 Dasreef Developments Pty Ltd v Josiv Velkovski [2017] NSWSC 1698 Foran v Wright (1989) 168 CLR 385 Hardy & Anor v Wardy [2001] NSWSC 1141 Hardy v Your Tabs Pty Ltd [2000] NSWCA 150 Jewelsnloo Pty Ltd v Sengos [2016] NSWCA 309 Mackay v Dick (1881) 6 App Cas 251 OXS Pty Ltd v Sydney Harbour Foreshore Authority [2016] NSWCA 120 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Category: Principal judgment Parties: Leonards Pharmacy Pty Ltd (Plaintiff and First Cross Defendant) Double Up 888 Pty Ltd (First Defendant and First Cross Claimant) Ngoc-Hien Duong (Second Defendant and Second Cross Claimant) Representation: Counsel: M J Heath (Plaintiff and First Cross Defendant) M Galvin (First and Second Defendants; First and Second Cross Claimants)