Ascot real estate identity Nerina Sportelli has won her District Court lawsuit fight against fellow sales house PRD Clayfield over the purchase of a site for a new Re/Max location in Hamilton.

The unconditional November 2008 contract, was according to the court, induced by misleading website and site inspection representations to the effect that the 458 Kingsford Smith Drive property was endowed with “rear street access to own onsite car park”.

During that inspection, PRD’s Rex King showed the car spot near the gate at the rear of the building that appeared to have access from Allen St.

In fact the property had no legal right of rear access but from time to time access had occurred because the owner of the Racecourse Rd block, across the rear of which ingress could be had from Allen St, had left it unfenced.

The absence of the right to cross the land from Allen Street was not discovered by the buyers until a discussion with neighbours shortly before settlement.

Sportelli and her husband terminated the contract and demanded the return of a $50k deposit. The seller counterclaimed contending the buyer be required to complete the contract. PRD was joined as second defendant to the proceedings.

It was Sportelli’s case that King’s revelation of the rear car space amounted to an “implied” representation that it was benefitted by street access. They also alleged King stated the property had “rear street access”, something he emphatically denied.

Impressed with Nerina’s evidence, Judge Kieran Dorney QC considered her a “straightforward witness who, though quite adamant at times, was recalling her true recollection”

Husband Giovanni “was much less impressive” than his wife, said the judge.

King conceded that his website listing specifying “access from the rear street to one’s own onsite parking” was potentially confusing.

Although he suspected the seller may not have owned the driveway, the access arrangement had been in place for many years and he had warned the buyers that they must “make their own inquiries regarding access to the car park”.

The court doubted that warning was given, preferring instead the view that experienced sales people would most likely specify such an issue as a ‘disclaimer’ in the contract itself, if in fact it had been made known to the buyer.

Finding no fraud by King or even negligence, the making of the statements nevertheless constituted “misleading” conduct allowing the buyers statutory relief in relation to their contract.

Given that the buyers would not have entered into the contract had they known the true state of affairs, a refund of the deposit was a sufficient remedy. The sellers’ counterclaim was dismissed.

The Sportellis also recovered legal costs for the two-day Brisbane District Court trial together with interest of $7k.

Sportelli & Anor v Robinson & Anor (No 2) [2014] QDC 100 Dorney QC DCJ 09/05/2014


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