Liao v LNG Properties Pty Ltd [2019] NSWSC 1846

Supreme Court New South Wales

Medium Neutral Citation: Liao v LNG Properties Pty Ltd [2019] NSWSC 1846 Hearing dates: 25-27 November 2019 Date of orders: 20 December 2019 Decision date: 20 December 2019 Jurisdiction: Equity - Real Property List Before: Rein J Decision: See [61]-[62]. Catchwords: CONTRACTS – Construction – Interpretation – Background – Where a clause in a contract for sale of a unit off the plan permitted the second plaintiff (Ms Li) as purchaser to rescind if the unit's actual internal area as built was five per cent less than what had been contracted for – The contract did not expressly state the expected internal area of the unit (i.e. the comparator for purposes of the clause); Ms Li contended that the comparator was 75 m² (as contained in marketing material provided to the first plaintiff, Mr Liao) and the defendants (LNG) contended that the comparator was 71.4 m², as derived from a plan known as the Revision E plan – Held: comparator was 75 m² on the basis that it was a fact known to both parties at the time of entering into the contract (in contrast to the Revision E plan, which was not known to both parties and which the parties had never agreed to use as the basis for determining the comparator), with the consequence that Ms Li could validly rescind the contract and have her deposit returned.

CONTRACTS – Principal and agent – Where Ms Li relied on Mr Liao's knowledge as her "agent to know" in respect of 75 m² being the comparator for purposes of the rescission clause – LNG asserted that Ms Li could not rely on Mr Liao's knowledge because the internal area was immaterial to her decision to buy the property (her having done so solely for the reason that Mr Liao, her romantic partner, had asked her to) and because Mr Liao, as her agent, did not have a duty to disclose to her his knowledge about the internal area (and nor did he disclose it) – Held: Ms Li was able to rely on Mr Liao's knowledge as her "agent to know".