Successfully resisted a claim for misleading or deceptive conduct in relation to the sale of a shopping centre. Acted for one of the respondents that was an asset manager for the vendor. The purchaser (who acquired the property on behalf of a syndicate of investors) alleged that documents provided to them, along with statements made in a meeting by a director of the asset manager, misled them about whether certain food outlet tenants were in arrears of their rent, the commencement dates of leases for some food outlet tenants, the expected passing rent and the extent to which individual food outlet tenants had received incentives. Furthermore, it was alleged that the respondents had failed to disclose these matters (i.e. misrepresentations by silence). McElwaine J in the Federal Court dismissed the claim, finding that that there was no misleading and deceptive conduct established, that in any event the purchaser had not relied on the alleged representations (noting other commercial motivation for the purchase, namely a possible mixed use redevelopment of the site), and finally, that at the time of the sale the centre was worth at least as much as the purchasers paid for it and so the purchaser could not have suffered any loss. On the valuation issue, findings about the independence and impartiality of the purchaser’s expert valuer were relevant.
Paul McQuade KC and Shane Monks (with K Boomer) appeared for the second respondent, instructed by Clyde & Co.
The judgment is published here. The proceedings were dismissed.
