Eddie Michael Awad & anor v Twin Creek Properties Pty Ltd [2011] NSWSC 923

Eddie Michael Awad & anor v Twin Creek Properties Pty Ltd [2011] NSWSC 923

The defendant engaged in misleading and deceptive conduct contravening Trade Practices Act s 52 in respect of the representation that a resort hotel would be constructed and managed by Peppers, as it had no reasonable grounds for making that representation due to lack of demonstrated financial ability. Damages are appropriate rather than rescission because the representation influenced, but was not decisive in, the plaintiffs' decision to purchase. The damages amount is assessed at 5 percent of the purchase price plus related interest and rates, apportioned two-thirds to the defendant and one-third to the plaintiffs' solicitor under proportionate liability. Costs are similarly apportioned.

Jurisdiction
Australia
Judgment Date
30 June 2011
Procedural Posture
Civil / Principal Judgment
Outcome
Judgment for the plaintiffs against the defendant for $75,000 (inclusive of interest). Defendant to pay 50 percent of the plaintiffs’ costs.
Legal Topics
['misleading and Deceptive Conduct' 'representations in Relation to Future Matters' 'relief for Misleading and Deceptive Conduct' 'proportionate Liability' 'professional Negligence']
['trade Practices' 'civil Liability'] ['misleading and Deceptive Conduct' 'representations in Relation to Future Matters' 'relief for Misleading and Deceptive Conduct' 'proportionate Liability' 'professional Negligence']

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Procedural Posture

Civil / Principal Judgment

Legal Issues

  1. 1 ['Whether representations made by the defendant regarding future matters were misleading or deceptive under Trade Practices Act s 52' 'Whether the defendant had reasonable grounds for making those representations under Trade Practices Act s 51A' 'Whether plaintiffs relied on the misleading representation (Peppers representation)' "Assessment and apportionment of damages and proportionate liability (including professional negligence of plaintiffs' solicitor)"]

Ratio Decidendi

The defendant engaged in misleading and deceptive conduct contravening Trade Practices Act s 52 in respect of the representation that a resort hotel would be constructed and managed by Peppers, as it had no reasonable grounds for making that representation due to lack of demonstrated financial ability. Damages are appropriate rather than rescission because the representation influenced, but was not decisive in, the plaintiffs' decision to purchase. The damages amount is assessed at 5 percent of the purchase price plus related interest and rates, apportioned two-thirds to the defendant and one-third to the plaintiffs' solicitor under proportionate liability. Costs are similarly apportioned.

Court Disposition

Judgment for the plaintiffs against the defendant for $75,000 (inclusive of interest). Defendant to pay 50 percent of the plaintiffs’ costs.

Orders

  • ['Defendant to pay plaintiffs $75,000 (inclusive of interest).' "Defendant to pay 50 percent of plaintiffs' costs of proceedings."]