Havyn Pty Ltd v Webster [2005] NSWCA 182

Havyn Pty Ltd v Webster [2005] NSWCA 182

The vendor engaged in misleading and deceptive conduct by representing the size of the flats as approximately 63 square metres without any reasonable basis, materially inducing the purchaser to enter the contract. Although the purchaser affirmed the contract and failed to complete due to inability to obtain finance (not attributable to the misrepresentation), the misrepresentation caused ascertainable loss. The trial judge erred in treating the representation as a statement of belief with sufficient foundation, and in failing to award damages. However, the vendor was still entitled to terminate the contract for breach. The court also held that, in the exercise of its discretion under...

Jurisdiction
Australia
Judgment Date
26 May 2005
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed in part; cross-appeal dismissed.
Legal Topics
['misrepresentation' 'breach of Contract' 'misleading and Deceptive Conduct' 'forfeiture of Deposit' 'damages' 'causation' 'discretion to Return Deposit']
['contract' 'trade Practices' 'property Law' 'equity'] ['misrepresentation' 'breach of Contract' 'misleading and Deceptive Conduct' 'forfeiture of Deposit' 'damages' 'causation' 'discretion to Return Deposit']

Case Brief

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Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether the vendor was entitled to terminate the contract and claim damages for failure to complete' "Whether vendor's representation as to size was misleading and deceptive conduct under s42 Fair Trading Act 1987 (NSW)" "Whether there was sufficient causation between the misrepresentation and the purchaser's loss" 'Whether the forfeited deposit should be returned under s55(2A) Conveyancing Act 1919 (NSW)']

Ratio Decidendi

The vendor engaged in misleading and deceptive conduct by representing the size of the flats as approximately 63 square metres without any reasonable basis, materially inducing the purchaser to enter the contract. Although the purchaser affirmed the contract and failed to complete due to inability to obtain finance (not attributable to the misrepresentation), the misrepresentation caused ascertainable loss. The trial judge erred in treating the representation as a statement of belief with sufficient foundation, and in failing to award damages. However, the vendor was still entitled to terminate the contract for breach. The court also held that, in the exercise of its discretion under...

Court Disposition

Appeal allowed in part; cross-appeal dismissed.

Orders

  • ['The appeal is allowed in part.' 'The cross-appeal is dismissed.' 'Orders 2 and 3 made by Palmer J on 3 August 2004 set aside; in lieu, Defendant to pay Plaintiff damages for breach of contract to be ascertained by the Master.' 'Order 6 of Palmer J on 3 August 2004 varied by deleting reference to Order 2.' 'Order 7...