Smogurzewski v AIT Investment Group Pty Ltd [2020] NSWSC 490

Supreme Court New South Wales

Medium Neutral Citation: Smogurzewski v AIT Investment Group Pty Ltd [2020] NSWSC 490 Hearing dates: 1 April 2020 Date of orders: 05 May 2020 Decision date: 05 May 2020 Jurisdiction: Equity Before: Darke J Decision: Plaintiff not entitled to rescind contract. Contract remains on foot. No order to be made for return of deposit. Catchwords: LAND LAW – conveyancing – contract for sale – off-the-plan purchase – purchase of home unit and carspace – where home unit constructed as an adaptable unit and carspace marked with symbol for disabled persons access – purchaser rescinds contract under rule in Flight v Booth – whether presence of symbol means that owner would not have exclusive use of carspace or gave rise to risk of unauthorised use – held that owner would have exclusive right to possess and enjoy carspace – held that owner would have right to remove or conceal the symbol – purchaser not entitled to rescind contract – contract remains on foot – no warrant for deposit to be returned to purchaser

MISLEADING OR DECEPTIVE CONDUCT – off-the-plan purchase of home unit and carspace – purchaser not informed that unit would be constructed as an adaptable unit and that carspace would be marked with symbol for disabled persons access – not shown that at time of contract vendor had that intention – no false or misleading representations made by vendor – conduct of vendor not misleading or deceptive or likely to mislead or deceive Legislation Cited: Australian Consumer Law, ss 18 and 30 Conveyancing Act 1919 (NSW), s 55(2A) Environmental Planning and Assessment Act 1979 (NSW), s 149 Local Government Act 1993 (NSW), s 650A Real Property Act 1900 (NSW) Strata Schemes Management Act 2015 (NSW), s 271 Cases Cited: Brien v Dwyer (1978) 141 CLR 378 Flight v Booth (1834) 1 Bing NC 370 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 Victorsen v Easy Living Holdings Pty Ltd [2019] NSWSC 1721 Category: Principal judgment Parties: Adam Josef Smogurzewski (Plaintiff) AIT Investment Group Pty Ltd (Defendant) Representation: Counsel: Mr S A Wells (Plaintiff) Mr P Folino-Gallo (Defendant)