Narayan v Swaleh & ors [2005] NSWSC 1248

Narayan v Swaleh & ors [2005] NSWSC 1248

Shaheen Reza Swaleh represented in trade or commerce that finance could be organised and that he would put in the money for the plaintiff, when the plaintiff had made clear he could provide only $70,000 and needed finance to proceed. The representation concerned a future matter, no reasonable grounds for it were established, and the circumstances suggested the contrary. The representation was therefore misleading under the Fair Trading Act and induced the plaintiff to enter the land contract and joint venture deed. Relief declaring those agreements void ab initio and ordering repayment by Shaheen Swaleh of the unrecovered amount was appropriate. There was insufficient evidence that...

Jurisdiction
Australia
Judgment Date
01 November 2005
Procedural Posture
Supreme Court of New South Wales Equity Division Proceedings for Recovery of Deposit and Relief for Misleading or Deceptive Conduct / Trial Proceeded in the Absence of the First and Third Defendants; Ex Tempore Judgment
Outcome
Judgment for the plaintiff against the first defendant; claims against the third defendant not established; cross-claims dismissed.
Legal Topics
['solicitors Ceasing to Act' 'trial Where Party Absent' 'misleading or Deceptive Conduct' 'representation as to Future Matter' 'recovery of Deposit' 'joint Venture for Property Development']
['civil Procedure' 'trade Practices and Consumer Protection' 'conveyancing' 'equity'] ['solicitors Ceasing to Act' 'trial Where Party Absent' 'misleading or Deceptive Conduct' 'representation as to Future Matter' 'recovery of Deposit' 'joint Venture for Property Development']

Case Brief

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Procedural Posture

Supreme Court of New South Wales Equity Division Proceedings for Recovery of Deposit and Relief for Misleading or Deceptive Conduct / Trial Proceeded in the Absence of the First and Third Defendants; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether Gadens had regularly ceased to act for the first and third defendants and whether any irregularity prevented the plaintiff proceeding at trial.' 'Whether the Court should proceed with the trial in the absence of the first and third defendants under Uniform Civil Procedure Rules r 29.7.' 'Whether Shaheen Reza Swaleh made misleading representations concerning the availability of finance for the proposed Tempe property development.' 'Whether the land contract and joint venture deed should be declared void ab initio and money refunded under Fair Trading Act 1987 s 72.' 'Whether Stanley Ali Swaleh was liable as a person involved in the contravention.' 'Whether the cross-claims should be dismissed because the cross-claimants did not appear.']

Ratio Decidendi

Shaheen Reza Swaleh represented in trade or commerce that finance could be organised and that he would put in the money for the plaintiff, when the plaintiff had made clear he could provide only $70,000 and needed finance to proceed. The representation concerned a future matter, no reasonable grounds for it were established, and the circumstances suggested the contrary. The representation was therefore misleading under the Fair Trading Act and induced the plaintiff to enter the land contract and joint venture deed. Relief declaring those agreements void ab initio and ordering repayment by Shaheen Swaleh of the unrecovered amount was appropriate. There was insufficient evidence that...

Court Disposition

Judgment for the plaintiff against the first defendant; claims against the third defendant not established; cross-claims dismissed.

Orders

  • ['Grant leave to the plaintiff to further amend the Statement of Claim in accordance with the document entitled Amendment to Amended Statement of Claim filed on 23 June 2004, initialled by the judge, dated 1 November 2005 and placed with the papers.' 'Note the undertaking of the plaintiff by his counsel to file a...