Christofidellis v Zdrilic [1999] FCA 39

Christofidellis v Zdrilic [1999] FCA 39

The applicants failed to discharge their onus of proving that the alleged oral representations as to dimensions and area were made by the real estate agent. Even if such representations had been made, the applicants did not establish reliance on them in entering the contract. The negligence claim also failed because the Court was not satisfied that the solicitor was instructed before exchange to check the area or dimensions of the property, and the Court found that an adequate explanation of the contract was given in the circumstances. Accordingly, the application against the second, third and fourth respondents was dismissed.

Jurisdiction
Australia
Judgment Date
19 January 1999
Procedural Posture
Application for Damages for Misleading and Deceptive Conduct and Negligence Arising From a Contract to Purchase Real Property / Final Judgment After Hearing
Outcome
Application against the second, third and fourth respondents dismissed with costs; cross claims dismissed with applicants to pay the cross claimants' costs.
Legal Topics
['misleading and Deceptive Conduct' 'oral Representations by Real Estate Agent' 'credibility of Witnesses' 'reliance' "solicitor's Duty to Explain Contract" 'scope of Retainer' 'real Property Purchase' 'damages']
['trade Practices' 'fair Trading' 'evidence' 'negligence' 'property Law' "solicitors' Professional Negligence"] ['misleading and Deceptive Conduct' 'oral Representations by Real Estate Agent' 'credibility of Witnesses' 'reliance' "solicitor's Duty to Explain Contract" 'scope of Retainer' 'real Property Purchase' 'damages']

Case Brief

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Procedural Posture

Application for Damages for Misleading and Deceptive Conduct and Negligence Arising From a Contract to Purchase Real Property / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the second and third respondents made oral representations about the dimensions, area and subdivisibility of 117 Kyle Parade, Kyle Bay.' 'Whether any alleged representations were relied on by the applicants in entering the contract to purchase the property.' 'Whether any alleged representations were misleading or deceptive under the Trade Practices Act 1974 (Cth) or the Fair Trading Act 1987 (NSW).' "Whether the fourth respondents' retainer included an instruction to check the area of the property." "Whether the applicants' solicitor breached a duty of care by failing adequately to explain the contract before it was signed." 'Whether any alleged breach caused recoverable loss.']

Ratio Decidendi

The applicants failed to discharge their onus of proving that the alleged oral representations as to dimensions and area were made by the real estate agent. Even if such representations had been made, the applicants did not establish reliance on them in entering the contract. The negligence claim also failed because the Court was not satisfied that the solicitor was instructed before exchange to check the area or dimensions of the property, and the Court found that an adequate explanation of the contract was given in the circumstances. Accordingly, the application against the second, third and fourth respondents was dismissed.

Court Disposition

Application against the second, third and fourth respondents dismissed with costs; cross claims dismissed with applicants to pay the cross claimants' costs.

Orders

  • ['The application against the second, third and fourth respondents be dismissed.' 'The cross claims of those respondents be dismissed.' "The applicants pay those respondents' costs including their costs on their cross claims."]