Big Arrow Enterprises Pty Ltd v Denning & Anor [1990] QSC 247

IN THE SUPREME COURT OF QUEENSLAND Before Mr. Justice Thomas No. 4161 of 1989 BETWEEN: CATCHWORDS: BIG ARROW ENTERPRISES PTY. LTD. IAN DONALD DENNING and DIANE CHERYL DENNING Applicant/Plaintiff Respondents/Defendants REASONS FOR JUDGMENT - THOMAS J. Delivered the c:!,Sl.:A day of~ , 1990. Swnmary judgment - facts. Counsel: Solicitors: P.V. Ambrose for Applicant/Plaintiff K.S. Howe for Respondents/Defendants Morris Fletcher & Cross for Applicant/Plaintiff Delaney, Hooke & Associates for Respondents/Defendants Hearing dates: 18th July, 1990 7 -- 1 of 3 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: No. 4161 of 1989 BIG ARROW ENTERPRISES PTY. LTD. IAN DONALD DENNING and DIANE CHERYL DENNING Applicant/Plaintiff Respondents/Defendants REASONS FOR JUDGMENT - THOMAS J. Delivered the cJS;l day of ~J , 1990. This is an application for summary judgment for the specific performance of contracts to purchase two units in "Mari Court" at the Gold Coast. It is a vendor's action. The plaintiff's material is in order, but on the day of the hearing the defendants obtained leave to read and file an affidavit which purports to set up a triable issue. The settlement date for completion of the contracts was 19th December, 1989. The purchasers sought an extension of time (on the ground of impecuniosity) but this was refused. They now seek to avoid specific performance on the ground of certain misrepresentations alleged to have been made by the selling agent prior to contract. following:- The alleged representations include the 1. That Mari Court was the only development in the area; 2. (Later) that Mari Court was the only block of its kind being developed in the area; -- 2 of 3 -- 3 that was misleading or deceptive. Reference was made to Byers v. Dorotea (1986) 69 A.L.R. 715 where broad statements that might normally be regarded as mere "puff" which were capable of giving a clear and wrong impression were held sufficient to ground relief under that section. Further His Honour held that affirmation after knowledge of the falsity of the statements does not necessarily preclude relief under that section ( through s. 87). It is not appropriate upon an application of the present kind to embark upon a determination of whether His Honour's view should be followed or not. Such a question is plainly arguable and would be better determined at trial. There are some factual areas that may require a wider presentation of evidence. These include matters involved in relation to the "area" referred to in the first representation; and in relation to the inspections made by the purchasers so far as issues of affirmation and waiver are concerned. I may say that I regard the defendants' material as very flimsy indeed and very close to the borderline of showing sufficient basis to justify a hearing. Whilst I might discern delay as the primary aim of the defendants, I cannot say that there is nothing fit to be tried. I grant leave to defend; certify that the action is one that should be tried speedily; reserve the costs of both parties; otherwise dismiss the summons. -- 3 of 3 --