In Carr v Miller  NSWSC 1424, Justice McDougall delivered a detailed judgment outlining various instances of what was found to be deliberate deceit by a property developer in respect of a residential development with "sweeping views of Middle Harbour" in Sydney.
The deceit arose from the procurement of Home Warranty Insurance (HWI) certificates which was a condition precedent to the purchase contract. The purchaser of a renovated property claimed damages assessed as the difference between the purchase price ($8.55 million) and the actual value of the property.
Although the developer was not a licensed builder nor a registered owner-builder, most of the construction works were carried out by the developer, by directly contracting with and overseeing tradespeople. Much of the construction work was defective. During a cooling-off period, the buyer became concerned about the quality of the works, and obtained the inclusion of a condition precedent in the contract of sale that required the provision of HWI coverage in respect of works completed in the six years prior to the contract of sale. These HWI certificates were obtained by the developer, but only by entering into back-dated sham contracts with a licensed builder, coupled with statements that the completed building works were undertaken by that builder. These representations were found to be knowingly false, and deliberately designed to induce the buyer into entering into the contract of sale and effecting payment.
The developer was found to be liable in deceit to the purchaser and under fiduciary duties owed to the original landowner as a result of an agency relationship, to the extent that the original landowner was also liable for the developer's conduct.