Mirvac triumphs in misrepresentation case

Mirvac scores a victory in the misrepesentation case brought against them by Jerrard & Stuk acting for investor Joseph Peter La Rocca.

The Age reported:
Mr La Rocca claimed Mirvac's agent, Margaret McBride, had made representations that the apartment would be on the 16th floor, would have uninterrupted views of Port Phillip Bay, would double in value in five years and could be rented for $2000 a week.

He claimed that none of these conditions had been met and his off-the-plan contract did not comply with the Domestic Building Contracts Act, which made the contract void.

The heated Supreme Court dispute included a witness statement lodged by Mirvac sales manager Graham Katz that alleged Mr La Rocca had said: "I have $30,000 in the bank, I'd rather pay them (his lawyers) than you. I've been to court and the best liars win."

Yesterday, Justice Hargrave described the contract of sale as "just, fair and reasonable", before ordering Mr La Rocca to pay a $96,000 deposit, plus interest and legal costs, which could total almost $500,000.

In his ruling, Justice Hargrave dismissed all claims that Mr La Rocca had been induced into the contract by misrepresentations or that Mirvac had acted unconscionably.

The case had challenged the enforcement of off-the-plan contracts and threatened a flurry of legal action by dissatisfied apartment investors.

My observation that I made earlier is that this case and any case for that matter came down to the facts and the quality of the witnesses, evidence and corroboration of the evidence. Mr Rocca was very well represented. It would appear, however, Mr Rocca did not make the best witness. Misrepresentation is always difficult to prove as you are moving outside the boundaries of the Contract. The case certainly stands for one thing and that is it validates off-the-plan contracts in Victoria.

A paragraph lifted from the judgement
"The defendant was a most unsatisfactory witness. He is not unintelligent and clearly has a reasonable degree of business acumen. From my observation of him, he well understood the factual issues about which he was giving evidence. Notwithstanding these matters, the defendant gave inconsistent evidence on important issues, was evasive when challenged with these inconsistencies, was argumentative and prone to speculation and reconstruction. At times, he gave definite evidence that things did not happen when it was clear he had no recollection at all about the subject matter of the questioning. As appears hereafter, he admitted misleading Mr Katz in conversations with him. On occasions, his instructions to his lawyers were plainly false, and he could not justify them upon cross-examination. Finally, as will appear, I am satisfied that the defendant set out to mislead the Court as to the extent of his knowledge of a letter to the plaintiff which was signed by him, but which he says was written by his wife, as to the circumstances of him signing that letter and as to the reason why his wife did not give evidence at the trial".