Bullabidgee Pty Ltd v McCleary; McCleary v Bullabidgee Pty Ltd [2010] NSWSC 145
Although vendors engaged in misleading and deceptive conduct by misrepresenting croppable acreage, purchasers did not rely on such conduct and suffered no loss or damage thereby. Statutory avoidance under Fair Trading Act s 72 was unavailable and would be declined in any event. Vendors validly terminated contracts for purchasers' default and are entitled to damages for breach of contract and trespass. Return of deposit under s 55(2A) is declined.
- Parties
- Plaintiff: Bullabidgee Pty Ltd; Plaintiff: Towool Pty Ltd; Plaintiff: Towool West Pty Ltd; Plaintiff: Towool Water Pty Ltd; Plaintiff: Warrawool Pty Ltd; Plaintiff: Warrawool North Pty Ltd; Plaintiff: Warrawool Water Pty Ltd; Plaintiff: MHD Echuca Pty Ltd; Plaintiff: Ian Tayles; Defendant: Brian John McCleary; Defendant: Peter Joseph Rae; Defendant: JP & M Kerr (Billabidgee) Pty Ltd; Defendant: Bullatale Pastoral Pty Ltd; Defendant: Bullabidgee Pty Ltd; Defendant: Towool Pty Ltd; Defendant: Towool West Pty Ltd; Defendant: Towool Water Pty Ltd; Defendant: Warrawool Pty Ltd; Defendant: Warrawool North Pty Ltd; Defendant: Warrawool Water Pty Ltd; Defendant: MHD Echuca Pty Ltd; Defendant: Ian Tayles; Defendant: Ricegrowers Limited t/as Sunrice
- Jurisdiction
- Australia
- Judgment Date
- 04 March 2010
- Procedural Posture
- Equity / Final Judgment After Hearing
- Outcome
- Vendors engaged in misleading and deceptive conduct, but purchasers did not rely and suffered no loss; vendors validly terminated for purchaser default; damages awarded to vendors; return of deposit declined.
- Legal Topics
- Misleading and Deceptive Conduct, Contract for Sale of Land, Damages, Trespass, Statutory Avoidance, Forfeiture of Deposit
Case Brief
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Parties
Bullabidgee Pty Ltd
Plaintiff
Towool Pty Ltd
Plaintiff
Towool West Pty Ltd
Plaintiff
Towool Water Pty Ltd
Plaintiff
Warrawool Pty Ltd
Plaintiff
Warrawool North Pty Ltd
Plaintiff
Warrawool Water Pty Ltd
Plaintiff
MHD Echuca Pty Ltd
Plaintiff
Ian Tayles
Plaintiff
Brian John McCleary
Defendant
Peter Joseph Rae
Defendant
JP & M Kerr (Billabidgee) Pty Ltd
Defendant
Bullatale Pastoral Pty Ltd
Defendant
Bullabidgee Pty Ltd
Defendant
Towool Pty Ltd
Defendant
Towool West Pty Ltd
Defendant
Towool Water Pty Ltd
Defendant
Warrawool Pty Ltd
Defendant
Warrawool North Pty Ltd
Defendant
Warrawool Water Pty Ltd
Defendant
MHD Echuca Pty Ltd
Defendant
Ian Tayles
Defendant
Ricegrowers Limited t/as Sunrice
Defendant
Procedural Posture
Equity / Final Judgment After Hearing
Legal Issues
- 1 Whether vendors engaged in misleading and deceptive conduct
- 2 Whether purchasers relied on such conduct and suffered loss
- 3 Whether contracts should be avoided under Fair Trading Act s 72
Ratio Decidendi
Although vendors engaged in misleading and deceptive conduct by misrepresenting croppable acreage, purchasers did not rely on such conduct and suffered no loss or damage thereby. Statutory avoidance under Fair Trading Act s 72 was unavailable and would be declined in any event. Vendors validly terminated contracts for purchasers' default and are entitled to damages for breach of contract and trespass. Return of deposit under s 55(2A) is declined.
Court Disposition
Vendors engaged in misleading and deceptive conduct, but purchasers did not rely and suffered no loss; vendors validly terminated for purchaser default; damages awarded to vendors; return of deposit declined.
Orders
- Judgment for possession to vendors; leave to issue writ of possession
- Purchasers to withdraw caveats by specified date
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