Fenshaw Pty Ltd v Nguyen [2005] NSWSC 250

Fenshaw Pty Ltd v Nguyen [2005] NSWSC 250

The Court found that the parties had reached an agreement, partly oral and partly implied from conduct, for the redevelopment and title correction steps, and that the s.23C(1)(a) defence could not prevail because of part performance. Fenshaw's representation that it would build the supermarket did not become a contractual term or guarantee, but it was misleading to the extent that it reasonably conveyed Fenshaw would retain a significant interest in the supermarket lots until completion, and the defendants relied on it. Relief should therefore correct the erroneous title position while imposing a limited s.87 condition requiring Fenshaw to set aside $100,000 upon settlement of the sale to...

Jurisdiction
Australia
Judgment Date
30 March 2005
Procedural Posture
Equity Proceedings Concerning Correction of Torrens Title Position Following Termination of a Strata Scheme, With Defendants' Cross Claim Under the Trade Practices Act 1974 / Judgment After Hearing
Outcome
Relief to be granted to the plaintiffs to correct the erroneous title position, subject to an order under s.87 of the Trade Practices Act 1974 on the defendants' cross-claim.
Legal Topics
['redevelopment of Shopping Centre' 'termination of Strata Scheme' 'conversion to Torrens Title' 'partly Oral and Partly Implied Contract' 'part Performance' 'misleading or Deceptive Conduct' 'relief Under S.87 of the Trade Practices Act 1974' 'specific Performance']
['contract' 'equity' 'real Property' 'consumer Protection' 'trade Practices'] ['redevelopment of Shopping Centre' 'termination of Strata Scheme' 'conversion to Torrens Title' 'partly Oral and Partly Implied Contract' 'part Performance' 'misleading or Deceptive Conduct' 'relief Under S.87 of the Trade Practices Act 1974' 'specific Performance']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Correction of Torrens Title Position Following Termination of a Strata Scheme, With Defendants' Cross Claim Under the Trade Practices Act 1974 / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the parties reached an agreement, partly oral and partly implied from conduct, to terminate the strata scheme, allocate former common property for the supermarket redevelopment, and execute necessary documents to correct the title position.' 'Whether s.23C(1)(a) of the Conveyancing Act 1919 (NSW) prevented enforcement of the agreement.' "Whether Fenshaw's statements that it would build the supermarket constituted misleading or deceptive conduct in contravention of s.52 of the Trade Practices Act 1974." 'What relief should be granted under s.87 of the Trade Practices Act 1974 and in equity.']

Ratio Decidendi

The Court found that the parties had reached an agreement, partly oral and partly implied from conduct, for the redevelopment and title correction steps, and that the s.23C(1)(a) defence could not prevail because of part performance. Fenshaw's representation that it would build the supermarket did not become a contractual term or guarantee, but it was misleading to the extent that it reasonably conveyed Fenshaw would retain a significant interest in the supermarket lots until completion, and the defendants relied on it. Relief should therefore correct the erroneous title position while imposing a limited s.87 condition requiring Fenshaw to set aside $100,000 upon settlement of the sale to...

Court Disposition

Relief to be granted to the plaintiffs to correct the erroneous title position, subject to an order under s.87 of the Trade Practices Act 1974 on the defendants' cross-claim.

Orders

  • ['Counsel for the defendants was directed to bring in short minutes of orders appropriate to the reasons, providing for correction of the titles.' 'An order under s.87 was to require Fenshaw to set aside $100,000 upon settlement of the sale to FKP, to be placed in a suitable interest bearing deposit in the joint...