Supreme Court - Trial Division

Orchid Avenue Pty Ltd v Hingston & Anor [2015] QSC 042 (12/4900) Philip McMurdo J 6 March 2015

Full-text: QSC15-042.pdf

Catchwords

CONTRACTS – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – where the plaintiff and defendant entered into a contract for the sale of an apartment “off the plan” and an additional contract for sale of furniture for the apartment – completion to be after registration of the relevant plan and creation of separate title for the apartment –– where the plaintiffs registered the plan, created a separate title and settlement became due – where the defendant refused to complete the contract, having purported to terminate – where the plaintiff claimed damages for breach of contract

CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – VENDOR’S REMEDIES – DAMAGES – where the parties entered into a contract for the sale of an apartment “off the plan” and a contract for sale of furniture for the apartment – completion after registration of the relevant plan and creation of separate title for the apartment – where the plan was registered and settlement became due – where the defendant refused to complete the contract, having purported to terminate – where the plaintiff claimed damages for breach of contract – where the plaintiff agreed to contribute $23,350 towards the total cost of furniture and their claim was reduced by this amount to reflect the net value of the contract for the apartment – nominal damages claimed for non-performance of the furniture contract

CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNINGS AND LIKE MATTERS – where the parties entered into a contract for the sale of an apartment “off the plan” – proposed apartment identified on a plan – where the plaintiff was required to provide to the defendants prior to purchase, a written statement clearly identifying the lot to be purchased under s 21 of the Land Sales Act 1984 (Qld) (‘LSA’) – where the plaintiff was required to provide a s 22 statement rectifying information that subsequently became inaccurate contained within the s 21 statement – where the defendants pleaded a defence under s 25(1) of the LSA allowing a purchaser to avoid a contract if “materially prejudiced” by the inaccuracy of a statement provided under s 21 – defence not pursued at trial and no evidence tendered to prove the defendants were materially prejudiced

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – where the parties entered into a contract for the sale of an apartment “off the plan” – where the defendants alleged that the plaintiff engaged in conduct which contravened s 52 of the Trade Practices Act 1974 (Cth) ‘TPA’– where the defendants claimed they were induced to enter the contract and relied on misrepresentations made by the plaintiff that the views from the apartment would be unobstructed by any other building – where the defendants claimed relief under s 87 of the TPA