• Plaintiffs are Mr and Mrs Luxford (the vendors).
• First defendant is Mrs Sidhu (the purchaser).
• Second defendant is PA & NA Johnson Pty Ltd.
• Third defendant is Johnson Prestige Realty Pty Ltd. • Fourth defendant is David Michael Johnson.
• Cross defendants are Peter Michael McBride and Anna Maria Bernadette Marano. • Contracts were exchanged on 2 May 2005 for the purchase of property for $2,130,000 between the plaintiffs and the first defendant. • Contract of sale to be completed by 25 July 2005, not completed. • Notice to complete served on 27 July 2005 requiring completion by 10 August 2005, not completed. • Plaintiffs sue for forfeiture of the deposit and for damages for a deficiency on re sale. • First defendant terminated the contract on the basis of: o Misrepresentation by the estate agent representing the vendors. o Discovery of potential medium-density development of neighbouring property. • First defendant also seeking claim against former solicitor alleging a failure to advise on zoning matters • First defendant
• Whether the vendor actually authorised the selling agent to make false representation. • Whether misrepresentation caused the first defendant to enter into the contract. • Whether a handshake between the first defendant’s husband and the agent expressed an intention to purchase the property by the first defendant. • Whether the first defendant would have exchanged contracts to purchase the property regardless of whether there was an interested buyer or not. • Whether the property was worth the amount that was agreed to be paid. • Conflicting statements contained in the affidavit material made it difficult to ascertain whether the alleged misrepresentation was caused by the first defendant’s husband, agent, or both. • Whether the misrepresentation was a mistake.
• Whether the advice given to first defendant by her solicitor effected her decision to purchase the property. • .Whether it is part of ordinary conveyancing practice to investigate town planning issues.
• The plaintiffs entitled to recover damages plus interest for breach of contract from the first defendant. • The claim against the plaintiffs by the first defendant is dismissed with costs. • The claim against the solicitor by the first defendant is dismissed with costs. Bryon AJ found in favour of the solicitor. • The cross - claims against the plaintiffs by the second and third defendants is dismissed. They have not incurred any liability. • Misrepresentation was not the cause of entering into a contract. • The plaintiff’s would have purchased the property even if no misrepresentations took place.
RELEVANCE TO CONVEYANCERS
• If a solicitor has specific knowledge of the client’s intended use of the property, then further investigation is necessary.
• Solicitors should practice telling clients words to the effect ” we do not search in relation to surrounding properties, you should make your own enquires as to the neighbourhood” (unless you are instructed otherwise).
• Conveyancers should develop, document and follow routine procedures for routine matters. Anything that is out of the ordinary should be dealt with specifically.
• Evidence that is given which is based on a ‘reconstruction” is not persuasive, Corroborative evidence is convincing. As such conveyancers should always confirm advice in writing. This means that the conveyancer will be able to give oral/ written evidence of their usual practice and they will be able to tender copies of advice, letters etc, if necessary.
2. Analyze TEC Desert Pty Ltd & Anor v Commissioner of State Revenue  HCA 49 (15 December 2010) as follows:...