Narayan v Swaleh & ors

Supreme Court of NSW|2005-11-01|Before: Brereton J

CITATION : Narayan v Swaleh & ors [2005] NSWSC 1248

CATCHWORDS : PROCEDURE - representation - solicitors - ceasing to act - effect of continuing to act after expiry of notice of intention to cease - further notice required - PROCEDURE - Supreme Court procedure - procedure where party is absent at trial - TRADE PRACTICES - consumer protection - misleading or deceptive conduct - representation as to future matter - CONVEYANCING - vendor and purchaser - deposit - recovery of deposit - where misrepresentation as to availability of finance.

Conveyancing Act s 55(2A) LEGISLATION CITED : Fair Trading Act 1987 s 72(5)(a) Uniform Civil Procedure Rules r 29.7

Barker v Furlong [1891] 2 Ch 172 Stone v Smith (1887) 35 Ch D 188 CASES CITED : Kingdon v Kirk (887) 37 Ch D 141 Yorke v Lucas (1985) 158 CLR 661

Sat Narayan (plaintiff) Shaheen Reza Swaleh (first defendant) John Cameron Geikie (second defendant) PARTIES : Stanley Ali Swaleh (third defendant) Finishcorp Pty Limited (fourth defendant) Jim Kekatos (fifth defendant)

T Hancock (plaintiff) A Iuliano (second defendant) B Bradley (solicitor) (fifth defendant) COUNSEL : No appearance (first defendant) No appearance (third defendant) No appearance (fourth defendant)

R E Barros (plaintiff) SOLICITORS : J Kekatos Lawyers (fourth defendant) Henry Davis York (fifth defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2811/04 SAT NARAYAN v SHAHEEN REZA SWALEH & ORS JUDGMENT (ex tempore - revised 22 December 2005) 1 HIS HONOUR: The plaintiff Sat Narayan entered into arrangements with the first defendant Shaheen Reza Swaleh through the intermediation of the third defendant Stanley Ali Swaleh, in the nature of a joint venture for the development by Mr Narayan and Shaheen Swaleh of land at Tempe, of which the registered proprietors were Shaheen Swaleh and the second defendant John Cameron Geikie, and Westpac Banking Corporation was the registered mortgagee. In furtherance of those arrangements, Mr Narayan paid $70,000 to the fourth defendant Finishcorp Pty Limited, a company which is now in liquidation, but of which Shaheen Swaleh was a director and shareholder. That payment of $70,000 might be characterised as being in the nature of a deposit. The relationship between Mr Narayan and Shaheen Swaleh having broken down, Mr Narayan now seeks to recover the $70,000. As well as proceeding against Shaheen Swaleh, Stanley Swaleh and Finishcorp, he also sued Mr Geikie, and the fifth defendant Jim Kekatos, a solicitor who acted for all parties and produced the documentation which attempted to regulate their rights in respect of the venture.

2 The proceedings against Mr Geikie have been settled, and as a result of that settlement Mr Narayan is to receive $10,000 from Mr Geikie in return for mutual releases. The proceedings against Mr Kekatos have also been settled, by a consent judgment for Mr Kekatos. The proceedings against Finishcorp are effectively stayed by the liquidation of Finishcorp. That leaves on foot only the proceedings against Shaheen and Stanley Swaleh, who have not appeared today, and cross-claims brought by Shaheen Swaleh against Mr Narayan.

3 Shaheen and Stanley Swaleh were formerly represented by Gadens, Solicitors, who also acted for Finishcorp. On 13 October 2005 that firm filed Notices of Ceasing to Act for those defendants, having much earlier ceased to act for Mr Geikie, for whom other solicitors subsequently acted. The Notice of Ceasing to Act filed on 13 October was in each case supported by an affidavit of Athanasios George Koumoukelis, a partner in Gadens who had been the solicitor on the record for those defendants, to which was annexed correspondence dated 28 January and 31 January 2005 to the relevant defendants, giving notice of his intention to cease to act for them, in which he wrote: I confirm that I will file a Notice of Ceasing to Act as solicitors for the first, third and fourth defendants within seven days from the date of this letter.

4 However, Gadens did not file any such notice within that seven day period, and continued to act for those defendants at least up to and including the pre-trial directions hearing on 7 September 2005, when Mr O'Connor of that firm appeared. In my opinion, the effect of the firm continuing to act so long after the expiry of the seven day period to which the correspondence had referred had the effect of waiving the Notice of Intention to Cease to Act, and requiring that a further notice be given if Gadens were thereafter to cease to act. There is no evidence that any further notice was given, before the actual Notice of Ceasing to Act was purportedly filed on 13 October 2005.

5 On 14 October, Gadens wrote to each of the defendants for whom they had acted, at various addresses which they had for them, serving the Notice of Ceasing to Act and affidavits of Mr Koumoukelis, and asserting that their effect was that Mr Koumoukelis ceased to act as their solicitor. Each letter confirmed that the matter was listed for hearing today. 6 From a letter dated 26 October 2005 addressed to Shaheen Swaleh, it appears that he attended that day to collect copies of the pleadings and affidavits from Gadens.

7 On 31 October 2005, that is to say yesterday, Messrs Wight & Strickland Solicitors sent a facsimile letter to Mr Narayan's solicitor, R E Barros, asserting that they act for Shaheen Swaleh with respect to family law proceedings, noting that R E Barros acted for Mr Narayan with respect to the present proceedings, and then making various proposals in conjunction with these present proceedings. Mr Barros gave evidence today that, having received that facsimile letter, he telephoned Mr Zacharatos of Wight & Strickland, and in the course of the ensuing conversation asked whether Mr Zacharatos would be appearing for the Swalehs today; Mr Zacharatos said that he would not.

8 Gadens have not regularly removed themselves from the record, since notice was not given to the Registrar of intention to file and serve Notice of Ceasing to Act 28 days before they did so or at all [Uniform Civil Procedure Rules r 7.29(2)(a)]. Indeed, the first Notice to the clients having been waived, no effective notice was given to the clients. However, the further evidence to which I have referred satisfies me that the first and third defendants are on notice of the hearing today, and have had ample opportunity and notice to attend and defend the proceedings if they wished to do so. Any irregularity in the manner in which Gadens has ceased to act ought not prevent Mr Narayan from proceeding today.

9 Accordingly, the case is one to which Uniform Civil Procedure Rules r 29.7 applies. The relevant defendants being absent, the Court may proceed with the trial generally. It being the defendants who have failed to appear, the plaintiff may proceed to prove his claim, so far as the burden of proof lies on the plaintiff, but is limited to the relief claimed in the Statement of Claim [Barker v Furlong [1891] 2 Ch 172, 178-179; Stone v Smith (1887) 35 Ch D 188; Kingdon v Kirk (1887) 37 Ch D 141]. Because the defendants are, in effect, plaintiffs on the cross-claims which they have filed, Mr Narayan as cross-defendant is entitled to judgment dismissing the cross-claims [Armour v Bate [1891] 2 QB 233].

10 As will become apparent, I am conscious that the basis ultimately advanced for the relief ultimately claimed varies somewhat from that pleaded. The relief proposed itself does not differ in effect from that claimed in the Statement of Claim: that it is proposed that contracts be declared void and the deposit returned does not depart in its present effect from declaring that they have been terminated (as alleged in the pleading) [cf Stone v Smith and Kingdon v Kirk in which claims for declaration that a contract had been terminated were different in effect from claims for specific performance of the contract]. Insofar as Mr Narayan proposes to seek leave to amend the pleading, I consider that the proposed amendment does not take the case against the first and third defendants outside the scope of that of which they have notice. In any event, I am conscious also that if the defendants are ultimately shown to be prejudiced in this respect, they will be entitled to apply under UCPR r 36.16(2)(b) to have a judgment given in their absence, whether or not they had notice of this hearing, set aside. In those circumstances, questions of proportionality of costs weigh heavily in favour of a decision to proceed and deal with the proceedings, albeit slightly amended, today, rather than adjourning them to enable notice of the proposed amendments to be given, when the relief is in substance not different from that previously sought and notified.

11 I come then to the essential facts. Mr Narayan owns and operates a coffee shop in Bella Vista. He met Stanley Swaleh in about July 2002, when Mr Swaleh explained that he was involved in the sale of investment properties and property development, and invited Mr Narayan to visit the Swalehs' office and find out what they did. There were several discussions over ensuing months and, in early August 2003, Stanley Swaleh visited Mr Narayan's coffee shop, where they had a conversation in which Mr Swaleh said: We have a small development at Tempe with a DA approved. My brother was supposed to do the development with someone else and he has pulled out. It is a very good deal, brother. You should come and look at it.

12 Mr Narayan replied, "Give me some papers on it", and Mr Swaleh said that he would get back to him. The following day he provided to Mr Narayan a profit projection in respect of a property at 47 Terry Street, Tempe.

13 A meeting with the first defendant Shaheen Swaleh was arranged for 11 September 2003. Before the meeting proceeded, Mr Narayan was required to and did execute a confidentiality agreement. Shaheen Swaleh then said, "This is a very small project, brother. I want to do bigger ones with you. This is just a small one to show we are serious about business with you". Mr Narayan said, "What's the damage? How much is it going to cost me?", to which Shaheen Swaleh replied, "Around $120,000 each". Mr Narayan said, "Look, I haven't been in business for two years yet, and I know for a fact I will have trouble in getting the finance". Shaheen Swaleh replied, "Don't worry about the finance. I have contacts who can organise it. How much can you outlay now?" Mr Narayan replied, "Up to $70,000. The rest will depend on a valuation of my investment unit at Pennant Hills". Shaheen Swaleh said, "There's no problem. I will put in the money for you". Shaheen Swaleh showed Mr Narayan the DA plans, and explained a little more of the proposal. Mr Narayan said that he would go ahead, and when asked, "How much can you get me?", answered, "$35,000 in a week or so and another $35,000".

14 At this stage there does not appear to have been any reference to Mr Geikie or to purchasing the land, and the conversation so far would suggest that Mr Narayan was contemplating paying $70,000 towards an ultimate investment of $120,000 in the proposed joint venture. However, it is clear from that conversation that Mr Narayan doubted that he was in a position to proceed, except on the basis that the difference between $70,000 and $120,000 could be found and put in on his behalf by Shaheen Swaleh, as Shaheen Swaleh had represented.

15 On 23 September 2003, Mr Narayan paid Stanley Swaleh the first $35,000. At Stanley Swaleh's request, the cheque was made out to Finishcorp, which he described as "another company that we are doing developments with". Mr Narayan was given a receipt for his cheque which described the payment as "initial deposit for Tempe property", although the evidence does not disclose that this was envisaged as a deposit under a contract for the purchase of land, and the more likely understanding of the parties, or at least of Mr Narayan, at this stage, was that it was a part payment of his contribution to the joint venture capital.

16 Mr Narayan made an appointment to see his solicitor, Mr Prasad, about the documentation, and with Stanley Swaleh collected draft documents from the office of Mr Kekatos (who was acting for the Swaleh interests) and took them to Mr Prasad's office. Mr Prasad apparently said that he needed more information, and Stanley Swaleh thereafter encouraged Mr Narayan to retain Mr Kekatos, on the basis that it would be cheaper and simpler if everything went through one solicitor. 17 Over the next few days, in late September 2003, Stanley Swaleh contacted Mr Narayan several times and urged him to act quickly. Mr Narayan agreed to retain Mr Kekatos. On 3 October 2003 Mr Narayan, accompanied by Stanley Swaleh, attended on Mr Kekatos in the latter's office in Parramatta. On the way Mr Narayan asked: "Stanley, you guys aren't going to cheat me, are you?" Mr Swaleh responded, "No, no way, brother", to which he added an oath on Allah.

18 At Mr Kekatos' office, Mr Narayan assented to Mr Kekatos acting for all parties. Mr Kekatos produced two documents, a Contract for Sale of the land, and a Joint Venture Agreement. Mr Narayan read through the documents and then executed them.

19 Although the evidence does not disclose it, there must have been further discussion between Mr Narayan and the Swalehs because, on reading the land contract, Mr Narayan observed that the contract price was $605,000 and said "I understood the price to be $600,000". This suggests that Mr Narayan must have had some prior knowledge that there was to be a land contract as well as a joint venture agreement, and that the land was to be purchased at a price of $600,000. The evidence simply does not disclose how that came about, nor how Mr Narayan thought that it was to be funded, but that does not change the position that it was fundamental to Mr Narayan's decision to proceed that the Swalehs would arrange funding for the difference between $70,000 and the total required, as he only had $70,000, and the rest would have to come from elsewhere.

20 The land contract, dated 3 October 2004, was between Shaheen Swaleh and John Cameron Geikie as vendor, and Sat Narayan and Shaheen Swaleh as tenants-in-common as purchaser. I take them to have purchased as tenants-in-common, because in the particulars in the contract, the black filling in the relevant squares seems to designate what might ordinarily be designated by a tick; the black filling opposite "joint tenants" has been struck out with a cross, and a tick has been added next to tenants-in-common. The price is said to be $600,000, with a deposit of $60,000 and a balance purchase price of $540,000.

21 Clause 20.4 provided that if a party consisted of two or more persons, the contract benefited and bound them separately and together.

22 Special Condition 43 was a purchaser's warranty to the vendor that it either held a current loan approval in an amount and upon terms which it considered to be reasonable and fully satisfactory and sufficient to enable completion, or did not require finance to complete the contract.

23 Special Condition 45 provided that upon exchange, if required by the vendor, the purchase would permit release of the whole or part of the deposit, to be applied solely for the deposit on a property being purchased by the vendor or the payment of stamp duty in relation to the same.

24 The Joint Venture Agreement between Shaheen Swaleh and Mr Narayan recited that the parties had on 25 September entered into an agreement to purchase that property for $600,000, and that they were desirous of entering in the joint venture for the purpose of developing and constructing a dual occupancy on the property.

25 By clause 2, the parties agreed to complete the agreement for the purchase of the property in accordance with its terms, and to enter into and execute all mortgage and related documents for the loan advance in order to assist in the purchase of the property.

26 By clause 3, the parties agreed that prior to completion each would contribute the amount of $120,000. By clause 5, it was agreed, consistently with the land contract as I interpret it, that the parties would be tenants-in-common as to a 50 percent share each in the joint venture.

27 By clause 6, it was agreed that, upon sale, the proceeds would be applied towards the reduction of the loan by the joint venturers from the National Australia Bank. This is something of a mystery, since the mortgage at that stage was to Westpac and, so far as I can tell, there was no loan from the National Australia Bank; the explanation is probably that the parties hoped to obtain finance from the National Australia Bank.

28 Clause 7 provided that the capital would be contributed proportionately to the parties' respective interests, that is to say 50/50. Clause 8 provided that profits would be shared, also proportionately to their interests.

29 Clause 25 provided that in the event of default, the defaulting party may give written notice specifying the default and requiring its remedy within 21 days, failing which the defaulting party may terminate the joint venture.

30 I have referred to these clauses because, although ultimately on the approach which I propose to take they do not affect the outcome, they give ground for doubting whether there has been a valid termination contractually of the Joint Venture Agreement, and they also give grounds to think that it might be sufficient for a Notice to Complete given by the vendors under the land contract to be addressed to only one of the purchasers, since the contract binds each purchaser separately as well as jointly.

31 After the contract had been signed on 3 October, Mr Narayan procured another bank cheque for $35,000 payable to Finishcorp. He gave it to Rebecca Burgess of Finishcorp, who provided him with another receipt, this one describing the payment as "Second deposit for Tempe property".

32 About a week later, Stanley Swaleh told Mr Narayan that an appointment had been arranged for Shaheen Swaleh and Mr Narayan to attend on the National Australia Bank at Campsie, to organise finance for the project. Shaheen Swaleh and Mr Narayan travelled together to Campsie. Shaheen Swaleh said "Brother, don't worry. Everything will be all right. We'll get the finance".

33 At the bank, a bank officer by the name of Peny asked Mr Narayan to fill out a form listing his personal details and authorising her to contact his branch of the bank for details of his existing obligations. She said to Shaheen Swaleh, "You will have problems getting another loan approved because of your limits". Shaheen Swaleh said, "It won't be a problem. You can use Mr Narayan's equity as security". Mr Narayan then realised that he may not have the full picture about the Swalehs, and that they were not as credible as he had at first thought.

34 Over the ensuing weeks, Stanley Swaleh pursued Mr Narayan for the remaining $50,000 of his supposed $120,000 contribution. Mr Narayan responded, "You have already got $70,000 out of me. Let's get the property in our names and then get a loan into place so we can settle on the property".

35 In about mid-November, Mr Narayan told Stanley Swaleh, "I have had enough of this. All the time you come to me wanting more money. All I know is that I have given you enough to enable you to settle on the property. Either we get finance or I want my money back as you promised me". Stanley Swaleh said that he would speak to Shaheen. Some days later, in a telephone conversation, Stanley Swaleh told Mr Narayan, "It's a legal issue now. It's nothing to do with me. It is between you and Shaheen". 36 It may be taken that the relationship broke down from this point. Mr Narayan attempted to telephone Shaheen Swaleh numerous times thereafter, but did not receive a response. He attempted to make an appointment to see him, but that was cancelled. He telephoned Mr Kekatos, but did not receive a response. In mid December, he instructed Mr Barros of R E Barros & Company to act for him. Mr Barros wrote to Mr Kekatos several times, without eliciting a response, until the matter was referred to the Legal Services Commissioner. Further attempts to set up a meeting between Mr Narayan and Shaheen Swaleh were unsuccessful. Eventually, on 8 April 2004, Mr Barros received from Mr Kekatos a letter bearing the date 4 March 2004, but plainly received on 8 April, enclosing copies of the Contract for Sale of land and the Joint Venture Agreement, and asserting that "as a consequence of your client's actions finance was not approved with respect to the above purchase."

37 After inquiries were directed to the Swalehs as to what had become of the $70,000, on 30 April 2004 Shaheen Swaleh and Mr Geikie sent a Notice to Complete to Mr Narayan, which recited that, "By Agreement for Sale dated 3 October 2003 you agreed to purchase and Shaheen Reza Swaleh ... and John Cameron Geikie ... agreed to sell" the Tempe property for the sum of $600,000, and "You have paid a deposit of $60,000 to the vendors and agreed to pay the balance of purchase moneys and adjustments in cash on completion". The Notice purported to require Mr Narayan to complete the purchase at 2pm on 14 May.

38 By letter dated 5 May 2004, Mr Barros, on behalf of Mr Narayan, disputed the validity and effect of the Notice to Complete, asserted that it was a repudiation, and purported to accept the repudiation and to terminate the contract, demanding repayment of the deposit of $70,000 paid to Finishcorp. In the view which I ultimately take, it is unnecessary to resolve whether the Notice to Complete was valid, or whether (as Mr Narayan's pleadings allege) it was a repudiation by reason of which Mr Narayan was entitled to terminate and recover the deposit. 39 Mr Narayan filed his summons on 12 May 2004. That day, the Court made an order ex parte restraining Finishcorp from dealing with the deposit. Subsequently, an order was made requiring an explanation on oath of what had become of the deposit, and by an affidavit sworn on 18 May 2004 Shaheen Swaleh explained that it had been paid into a St George Bank account and used to pay the expenses and outgoings of Finishcorp, some of which were said to include the costs of a construction certificate, deposit for builder and project management fees for the Tempe land, and (so it was asserted) to pay $10,000 to Mr Geikie.

40 The inconsistencies of the contractual documentation, the oral negotiations between the parties and the events which have happened give rise to great difficulty in characterising the obligations of each of the parties under that documentation, and distilling the true legal character of their agreement. But some fundamental elements are, on the evidence before me, reasonably clear. 41 The first is that Shaheen Swaleh, in the presence of Stanley Swaleh, on 11 September 2003, in the context that Mr Narayan had made clear that all he could provide was $70,000, and before Mr Narayan committed to go ahead with the investment, represented that despite Mr Narayan's concern that he would have trouble in getting the finance, Shaheen Swaleh had "contacts who could organise it", and would "put in the money" for him.

42 Secondly, it is tolerably clear from that conversation and the following ones that, had that representation not been made, Mr Narayan would not have been in a position to commit to the venture. The very fact that he pointed out he had not been in business for two years and knew that he would have trouble getting the finance indicates that the representations that he need not worry about it and that Shaheen Swaleh could organise it were fundamental to his decision to proceed.

43 Thirdly, Shaheen Swaleh was unable to secure the promised finance for the transaction, as is clear from the interview with the bank at Campsie, when Peny said that he would have problems getting another loan, to which his response that Mr Narayan's equity could be used as security. 44 Fourthly, as the Notice to Complete evidences, the vendors were treating the moneys paid by Mr Narayan, at least to the extent of $60,000, as a deposit under the land contract. 45 Fifthly, the dealings between Mr Narayan and the Swalehs were in trade or commerce. They involved a proposed property development, which is commercial activity, as is the raising of finance for that purpose.

46 The representation that Mr Narayan need not worry about finance and that Shaheen Swaleh could raise it was a representation with respect to a future matter, within Fair Trading Act, s 41(1). Such a representation made without reasonable grounds is to be taken to be misleading, and the onus of establishing that a person had reasonable grounds for making such a representation is borne by the person who made it. There is no evidence to establish reasonable grounds for making that representation, and the circumstances of the conversation with Peny, and her statement that there would be difficulty in Shaheen Swaleh obtaining further finance due to his limits suggests the contrary - namely, that he did not have reasonable grounds for making that representation. Accordingly, I conclude that representation was misleading for the purposes of Fair Trading Act, s 41(1).

47 The finding that that representation was misleading concludes, then, that in making it Shaheen Swaleh engaged in conduct which was misleading or deceptive or likely to mislead or deceive contrary to Fair Trading Act, s 42(1).

48 Section 42 is within Pt 5 of the Fair Trading Act. Pursuant to Fair Trading Act, s 72, the Court may, on the application of a person who has sustained or is likely to sustain loss or damage by conduct of another person in contravention of a provision of Pt 5 of the Act, may make such orders as the Court thinks appropriate against the person who engaged in the conduct, or a person who was involved in the contravention, including all or any of the orders specified in subsection (5), if the Court considers the order or orders concerned will compensate the person who made the application wholly or in part for the loss or damage, or will prevent or reduce the loss or damage. The orders referred to in subs (5) include, by paragraph (a), an order declaring the whole or any part of the contract made between the person who suffered or is likely to suffer the loss or damage and the person who engaged in the conduct or was involved in the contravention to be void, and/or void from its beginning or at all times on and after such date as is specified in the orders, and, by paragraph (d), an order directing the person who engaged in the conduct or a person who is involved in contravention to refund money or return property to the person who suffered the loss or damage.

49 I am satisfied that it will either prevent the loss or damage, and/or compensate Mr Narayan for the loss or damage which, by reason of the contravening conduct, he would otherwise suffer - namely, the loss of $70,000 invested in the venture - to declare the Joint Venture Agreement and the Contract for Sale of land void ab initio, and to order the refund by Shaheen Swaleh of so much of the amount of $70,000 paid under it as has not already been recouped from Mr Geikie. [Alternatively, the same relief can be supported by reliance on Conveyancing Act s 55(2A), it being just and equitable that the deposit be returned for the same substantive reasons, and although the deposit was paid to Finishcorp, that should be regarded as being by direction of the vendors Shaheen Swaleh and Mr Geikie, as the Notice to Complete in effect recites and admits].

50 Despite Mr Hancock's submission to the contrary, while it is true that many of the representations made by Shaheen Swaleh were expressed in inclusive terms, and other representations were made either through or by Stanley Swaleh, the difficulty in holding that Stanley Swaleh was a "person involved" in the relevant sense in the contravention of the Fair Trading Act which I have found is that the particular relevant representations were in terms "I have contacts who can organise it" and "I'll put in the money for you". There is, I think, insufficient evidentiary basis for the serious finding, approaching one of fraud, that Stanley Swaleh knew that those representations made by his brother were false, which is necessary to a conclusion that a person is involved, in the relevant sense in a contravention [Yorke v Lucas (1985) 158 CLR 661]. Accordingly, I am unable to find Stanley Swaleh liable as a person involved in the contravention which I have found against Shaheen Swaleh. [Nor was he a vendor or recipient of the deposit, so Conveyancing Act s 55(2A) is not available against him]. As Stanley Swaleh was not a party to the land contract or the joint venture agreement, further analysis of the rights of the parties under those agreements would not advance the case against him.

51 For the foregoing reasons, and subject to any submissions which might be made on the form of the orders, I propose to make the following orders: (1) Grant leave to the plaintiff to further amend the Statement of Claim in accordance with the document entitled Amendment to Amended Statement of Claim filed on 23 June 2004, initialled by me, dated this day and placed with the papers.

(2) Note the undertaking of the plaintiff by his counsel to file a Further Amended Statement of Claim incorporating those amendments by 2 November 2005.

(3) Declare, pursuant to Fair Trading Act 1987, s 72(5)(a), that the contract for sale of land between the first defendant, Shaheen Reza Swaleh, and the second defendant, John Cameron Geikie, as vendors, and the plaintiff, Sat Narayan, and the first defendant, Shaheen Reza Swaleh, as purchasers, dated 3 October 2003, is void ab initio.

(4) Declare, pursuant to Fair Trading Act 1987, s 72(5)(a), that the deed dated 3 October 2003 between the first defendant, Shaheen Reza Swaleh, as first joint venture partner and the plaintiff, Sat Narayan, as second joint venture partner, is void ab initio.

(5) Order, pursuant to Fair Trading Act, s 72(5)(e) [and/or Conveyancing Act , s 55(2A)], that the first defendant, Shaheen Reza Swaleh, pay to the plaintiff the sum of $60,000.

(6) Order that the first defendant pay the plaintiff's costs of the proceedings.

(7) Order that the cross claims filed on 23 June 2004 be dismissed.

(8) Order that the first defendant pay the plaintiff's costs of the cross claims. **********

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