Aldahr & Anor v Motor Accident Commission & Anor [2007] NSWSC 1102

Aldahr & Anor v Motor Accident Commission & Anor [2007] NSWSC 1102

MAC was not liable because, as at 22 September 2004, the surrender negotiations with Unique were uncertain and MAC had made no decision to accept surrender; MAC had disclosed Unique's rent arrears, and the Plaintiffs had not made clear that the continued existence of Unique's lease was critical to finance. There was no duty to disclose the state of those negotiations, no misleading or deceptive conduct under s.52 TPA, and the pleaded 3 August 2004 representations were not proved. In any event, reliance and causation were not established: Mr Aldahr knowingly proceeded despite the risk that finance could be withdrawn if Unique's arrears were disclosed, and inability to complete was...

Jurisdiction
Australia
Judgment Date
05 October 2007
Procedural Posture
Equity Division Proceeding Concerning Claims Under the Trade Practices Act 1974 (cth) and S.55(2 A) Conveyancing Act 1919 (nsw) Arising From a Contract for Sale of a Shopping Centre / Judgment on Amended Statement of Claim and Amended Cross Claim
Outcome
Judgment for the First Defendant on the Amended Statement of Claim; orders as sought in the Amended Cross Claim.
Legal Topics
['misleading or Deceptive Conduct' 'misrepresentation by Silence' 'reliance and Causation' 'forfeiture and Return of Deposit' 'notice to Complete' 'surrender of Lease']
['trade Practices' 'contract for Sale of Land' 'equity'] ['misleading or Deceptive Conduct' 'misrepresentation by Silence' 'reliance and Causation' 'forfeiture and Return of Deposit' 'notice to Complete' 'surrender of Lease']

Case Brief

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Procedural Posture

Equity Division Proceeding Concerning Claims Under the Trade Practices Act 1974 (cth) and S.55(2 A) Conveyancing Act 1919 (nsw) Arising From a Contract for Sale of a Shopping Centre / Judgment on Amended Statement of Claim and Amended Cross Claim

Legal Issues

  1. 1 ["Did MAC have an obligation to disclose to the Plaintiffs, prior to exchange of contracts, the state of the proposal for surrender of Unique's lease?" 'By failing to make such disclosure, did MAC engage in misleading or deceptive conduct in contravention of s.52 TPA?' 'Did the Plaintiffs rely on any contravening conduct of MAC in entering into the contract for purchase of the Centre?' 'Was the loan approval from the Commonwealth Bank to the Plaintiffs dependent upon the lease to Unique remaining in existence at least until settlement of the purchase?' "Was the surrender of Unique's lease the reason that the Commonwealth Bank loan did not proceed?" 'Did MAC validly terminate the contract on 6 May 2005?' 'Should the deposit be returned to the Plaintiffs pursuant to s.55(2A) Conveyancing Act?']

Ratio Decidendi

MAC was not liable because, as at 22 September 2004, the surrender negotiations with Unique were uncertain and MAC had made no decision to accept surrender; MAC had disclosed Unique's rent arrears, and the Plaintiffs had not made clear that the continued existence of Unique's lease was critical to finance. There was no duty to disclose the state of those negotiations, no misleading or deceptive conduct under s.52 TPA, and the pleaded 3 August 2004 representations were not proved. In any event, reliance and causation were not established: Mr Aldahr knowingly proceeded despite the risk that finance could be withdrawn if Unique's arrears were disclosed, and inability to complete was...

Court Disposition

Judgment for the First Defendant on the Amended Statement of Claim; orders as sought in the Amended Cross Claim.

Orders

  • ['Judgment for the First Defendant on the Amended Statement of Claim.' 'Declaration in terms of paragraph 1 of the Amended Cross Claim.' 'Order that the monies paid into Court by the Second Defendant, together with any interest accrued, be paid to the First Defendant/Cross Claimant.' 'The Court will hear the parties...