S. & U. Constructions Pty Ltd v. Westworld Property Holdings Pty Ltd & Anor [1988] FCA 80

S. & U. Constructions Pty Ltd v. Westworld Property Holdings Pty Ltd & Anor [1988] FCA 80

The letter of 13 September 1985 was false, was known by David James Remar to be false, and was sent to deceive the agent and through him the applicant. The fraud induced the applicant to proceed to completion. Clause 2 was a condition subsequent and non-fulfilment gave the applicant an election to avoid rather than automatically terminating the contract; pre-misrepresentation steps, including the letter of 5 September and requisitions, did not amount to unequivocal affirmation, while later steps were induced by the misrepresentation. Judith Eve Remar was not shown to have personal knowledge or involvement. The applicant suffered loss measured prima facie by the difference between the...

Jurisdiction
Australia
Judgment Date
11 March 1988
Procedural Posture
Application by Purchaser of Land Claiming Relief Against the Vendor and Its Directors Under S.52 of the Trade Practices Act and on Other Bases / Final Judgment and Orders
Outcome
Application dismissed against Judith Eve Remar; judgment for the applicant against David James Remar in the sum of $113,000 plus costs.
Legal Topics
['misleading or Deceptive Conduct' 'deceit Alleged to Induce Completion of Land Purchase' 'condition Subsequent' 'affirmation of Contract' 'access Approval for Development' 'assessment of Damages' 'interest']
['trade Practices' 'contract' 'vendor and Purchaser' 'damages'] ['misleading or Deceptive Conduct' 'deceit Alleged to Induce Completion of Land Purchase' 'condition Subsequent' 'affirmation of Contract' 'access Approval for Development' 'assessment of Damages' 'interest']

Case Brief

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Procedural Posture

Application by Purchaser of Land Claiming Relief Against the Vendor and Its Directors Under S.52 of the Trade Practices Act and on Other Bases / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether the respondents made misleading statements, particularly in the letter of 13 September 1985, about approval by Big Rooster, the Main Roads Department and Logan City Council' 'Whether the letter of 13 September 1985 induced the applicant to complete the purchase' 'Whether the applicant was contractually obliged to complete or had affirmed the contract after non-fulfilment of clause 2' 'Whether David James Remar was personally involved in the misleading conduct under s.75B of the Trade Practices Act' 'Whether Judith Eve Remar had personal knowledge or involvement sufficient for liability' "Whether the applicant's loss should be reduced because its own post-settlement conduct contributed to the loss" 'What damages and interest should be awarded']

Ratio Decidendi

The letter of 13 September 1985 was false, was known by David James Remar to be false, and was sent to deceive the agent and through him the applicant. The fraud induced the applicant to proceed to completion. Clause 2 was a condition subsequent and non-fulfilment gave the applicant an election to avoid rather than automatically terminating the contract; pre-misrepresentation steps, including the letter of 5 September and requisitions, did not amount to unequivocal affirmation, while later steps were induced by the misrepresentation. Judith Eve Remar was not shown to have personal knowledge or involvement. The applicant suffered loss measured prima facie by the difference between the...

Court Disposition

Application dismissed against Judith Eve Remar; judgment for the applicant against David James Remar in the sum of $113,000 plus costs.

Orders

  • ['The application against the second respondent, Judith Eve Remar, be dismissed.' 'The second respondent, David James Remar, pay the applicant the sum of $113,000.' "The second respondent, David James Remar, pay the applicant's costs of and incidental to the proceedings, to be taxed."]