Orchid Avenue Pty Ltd v Hingston & Anor  QSC
42 per McMurdo J
This case highlights the importance of buyers making their own
enquiries when purchasing properties for reasons that relate to
features external to the property, such as ocean views.
The first and second defendants, Mr and Mrs Hingston
(Buyers), entered into a contract with the
plaintiff (Seller) to purchase an apartment
"off the plan" in the Hilton Surfers Paradise Hotel and
Residences development (Hilton Development). The
apartment was located on the 52nd floor and faced east towards the
ocean. The agreed price for the apartment was $3.15 million.
The plan for the Hilton Development was registered in August
2011 and settlement became due on 8 September 2011. However, the
Buyers refused to complete the contract.
The Seller claimed damages for breach of contract quantified by
the contract price less the market value on termination of the
contract, less the commission saved. Between when the contract was
entered into and September 2011, the value of the apartment had
fallen by $1.5 million.
The Buyers defended the Seller's claim on the basis that
they were induced to enter into the contract because of misleading
and deceptive conduct by the Seller in breach of the then section
52 of the Trade Practices Act 1974 (Cth), entitling them
to effectively avoid completing the contract.
The Buyers asserted that representatives at the sales office for
the Hilton Development made representations that the views of the
ocean would be unobstructed by any other building and would be
protected from being obstructed because the council would not
approve a building that would obstruct those views.
The Buyers claimed that when the representations were made in
March 2008, the views from the Hilton Development were
unobstructed. However, by the time the settlement date came around,
the "Soul" development had been constructed. The Soul
development has 77 floors and is situated between the Hilton
Development and the coastline, such that it obstructed the
The Court was ultimately not satisfied that the representations
were made by the Seller to the Buyers for the following
construction of the Soul development had already commenced in
February or March 2008, which was around the time the
representations were allegedly made;
it was publicly advertised that the Soul development would have
Mr Hingston was an experienced property investor;
Mr Hingston had seen the boarding around the Soul development
site while it was being constructed;
the existence of the Soul development and its proposed height
the locality of central Surfers Paradise made it unlikely that
there would be a change in planning laws such that a nearby
building could not be constructed to the height of the Hilton
there was, in fact, no such change in law; and
the Buyers did not complain about the obstructed views until
close to the due date for settlement, however, the height or likely
height of the Soul development must have become obvious by at least
In light of the above, the Seller was successful in its claim.
Damages were awarded to the Seller together with interest of over
$300,000 and costs.
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