Krakowski
vEurolynx Properties Ltd

Judges: Brennan J
Deane J
Toohey J
Gaudron J
McHugh J

Subject References:

Legislative References:
Sale of Land Act 1962 (Vic) - s 13(1); s 32
Trade Practices Act 1974 (Cth) - s 52; s 53A
Fair Trading Act 1985 (Vic) - s 11(1); s 13(1)
Fair Trading Act 1985 (Vic) - 11

Sydney

Order

(1) Appeal allowed.

(2) Set aside paras 4 and 5 of the order of the Full Court of the Supreme Court of Victoria and, in lieu thereof, provide as follows:

The court declares that:

4.The appellants, David Krakowski and Henia Krakowski, were induced to enter into the contract of sale referred to in para 3 of the amended statement of claim by conduct of the respondent Eurolynx Properties Ltd that was fraudulent and, in terms of s 52 of the Trade Practices Act 1974, misleading.

The court further orders that:

5.If necessary, following the mediation procedure referred to in para 6, there be a new trial limited to:

(a)

a determination whether by the letter of 7 December 1990, the appellants effectively rescinded the contract of sale as alleged in para 9 of their amended statement of claim;

(b)

if yes to (a), a determination whether an account and inquiry should be ordered to restore the appellants and the respondent Eurolynx Properties Ltd as closely as may be to their respective positions when they entered into the contract;

(c)

a determination whether the appellants should recover any and what damages for loss and damage as a result of the conduct referred to in para 4 of this order;

(d)

the orders which should be made to give effect to the above determinations;

(e)

a determination of the liability of the respondent Mallesons Stephen Jaques to the respondent Eurolynx Properties Ltd in the third party proceedings between them.

5A.The evidence admissible on the new trial in addition to the evidence admitted on the original trial be limited to evidence of matters occurring subsequent to the closing of evidence on the original trial.

(3) The respondents pay the appellants' costs of this appeal.

(4) The respondents bear their own costs of the appeal and cross-appeal.

(5) The action be remitted to the Supreme Court of Victoria to proceed in accordance with the reasons for judgment of this court.