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Benchmark - Cases & Commentary
Contract for Sale
    •  Completion
        -  Where misleading and deceptive conduct alleged

Where misleading and deceptive conduct alleged 

South Sky Investments contracted to sell two apartments to Mr and Mrs Prins in a building that was planned to be built on the Gold Coast, to be known as The Oracle Resort. The contracts provided that the sale should be completed 14 days after notice was given that the community title scheme over the building had been established.

Notice of the establishment of the community title scheme was given, but Mr and Mrs Prins refused to settle as required.

South Sky Investment sued Mr and Mrs Prins in the Supreme Court of Queensland, seeking an order that the sale go ahead, and then sought summary judgment.

Mr and Mrs Prins alleged that they had been given documents before they signed the contracts, which provided that purchasers who bought the apartments could then let them through an on-site letting agent, through an off-site letting agent, or privately. They complained, however, that a company associated with South Sky Investments had applied for registration of trade marks over the words “The Oracle”, and similar phrases, for use by the on-site letting agent. They said that they wanted to let their apartments privately, and that the registration of these trade marks would make it impossible for them to effectively market the apartments. Therefore, they alleged, South Sky Investments had engaged in misleading and deceptive conduct, and they should be excused from complying with the contracts.

The Court looked at the law of trade marks, and stated that it could not be definitely concluded that the registration of the trade marks would have no substantial impact on apartment owners who wanted to privately market their apartments for letting.

The Court further held that there was some chance that Mr and Mrs Prins could make good their allegations if the case went to trial. Therefore, the Court refused to give summary judgment in favour of South Sky Investments.

South Sky Investments Pty Ltd v Prins [2010] QSC 438