A buyer who signed up in March 2008 for a $3.15 million Orchid Tower apartment in the Hilton Surfers Paradise resort has been sued by the developer for its re-sale loss  conceding the market value has crashed to near 50% of the pre-GFC sale price.

Greg and Nola Hingston refused to complete their 52nd floor condo buy in September 2011 because Soul – the 70 level tower between it and the sand – had substantially obliterated their promised breathtaking beach and ocean views.

They defended the developer’s claim – for more than half the buy price – on the basis of the sales representatives’ alleged misleading and deceptive representations as to the spectacular outlook.

Not only were they promised a vista “unobstructed by any other the building” but also they “would be protected because the council would not approve another building in front of the project to that height”.

Such statements were said to have been made by sales reps Candice McGregor and Angela Panagakos.

Had it not been for those representations, Hingston – who was self-represented at the Supreme Court trial – swore he and his wife would not even have considered an offer.

Justice Philip McMurdo had doubts as to Hingston’s account given that Mrs Hingston was never called to the witness box and because he conceded having probably walked past Soul’s promotional hoardings albeit, their significance not having registered with him.

The sales reps swore they had only spoken of the views from the Hilton tower then and there in 2008, without offering any opinion at all about how the vista might be affected by 2012. They also gave evidence that Mr Hingston was only concerned about whether or not he could “see the coastline” rather than having broader concerns about “views”.

In the end the judge ruled – although not entirely satisfied with the evidence of the two agents – “the obviousness of the Soul development” and its proposed height were so compelling that they could not in reality have been missed by the buyers, who after all were experienced real estate investors.

He found that no representation was made that the views would remain unobstructed to the ocean. He drew further support for that for that conclusion from “no complaint being made by the buyers until close to the date due for settlement” whereas the likely height of Soul must have been obvious to them by at least 2010.

Having already got its hands on the buyer’s $315k deposit, the court ordered that the Hingstons pay the developers a further $1.42 million by way of damages, including nearly $400k for interest. And that’s without any property changing hands!

Orchid Avenue Pty Ltd v Hingston & Anor [2015] QSC 042 Philip McMurdo J 06/03/2015


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