Botany Bay Apartments Pty Ltd v Badolato [2019] NSWSC 296

Supreme Court New South Wales

Medium Neutral Citation: Botany Bay Apartments Pty Ltd v Badolato [2019] NSWSC 296 Hearing dates: 11-13 February 2019 Date of orders: 26 March 2019 Decision date: 26 March 2019 Jurisdiction: Common Law Before: Davies J Decision: Plaintiff to bring in short minutes of order to quantify the judgment. Catchwords: LAND LAW – conveyancing - two contracts for sale – off-the-plan purchase – alleged representations by the plaintiff vendor's agent as to the size of the properties – defendant purchaser paid part of the deposits upon exchange and the balance was due upon expiration of the cooling off period – where the balance was not paid by that date and thereafter – purchaser repudiated the contracts – vendor seeks payment of the balance of the deposits – whether the vendor is entitled to recover the deposit – judgment for the vendor

LAND LAW - conveyancing – deposit - discretionary power to order relief against forfeiture of a deposit under s 55(2A) Conveyancing Act 1919 (NSW) – whether power can be exercised in favour of the purchaser where the vendor is suing to recover deposit and purchaser does not cross-claim – power extends to such a situation to avoid circuity of action – factors relevant to the exercise of the discretion – where the purchaser was an experienced buyer with a significant property portfolio – in the absence of a finding as to a misrepresentation or some other unconscionable conduct no basis for the exercise of discretion

CONSUMER LAW – misleading or deceptive conduct – whether the vendor breached ss 18 and/or 30 of the Australian Consumer Law – whether the vendor made a representation as to the size of the properties – vendor denied making such a representation – assessment of the relative credibility of representor and representee – fallibility of human memory – reliance upon contemporaneous documents to resolve dispute – where the contemporaneous documents pointed strongly to the representation not being made – where, in any event, the purchaser was on notice within the cooling off period that no such representation was being made – claim unsuccessful