Legal Tip 361: Recent Legal Cases on Property Contract Disputes

I am going to start collecting court cases on different areas of law to help make them easier to find in the future. This thread is for the cases relating to disputes about property contracts.

 

McCLEARY -v- DIEN AUSTRALIA PTY LTD [2021] WASC 272 (12 August 2021)

McCLEARY -v- DIEN AUSTRALIA PTY LTD [2021] WASC 272 (12 August 2021)

Introduction

1. In 2015 the plaintiffs agreed to buy an apartment 'off the plan' from the defendant. The development company appointed to manage the development and sell the apartments made a proposal to the plaintiffs to the effect that if they paid 80% of the specified purchase price of the apartment immediately they would receive a 20% discount. The plaintiffs accepted this proposal, executed documents intended to give it effect (including a 'Discount Agreement') and paid 80% of the purchase price to the development company. The defendant denies that the development company had authority to reach such an agreement and refused to settle unless the plaintiffs paid the full purchase price. The development company has been wound up in insolvency.


2 The plaintiffs sue to enforce the sale at the discounted price. The defendant counterclaims to enforce the sale at the full price.


Conclusions and remedy

254 It follows from the conclusions I have expressed that the making of the Discount Agreement was within 13 O'Connor's apparent authority and the defendant is bound by its terms. If I am wrong in reaching that conclusion on apparent authority then the defendant ratified and adopted the Discount Agreement and is bound by it on that basis.

255 It follows from these conclusions that, subject to the plaintiffs' reimbursing the defendant in respect of the outgoings paid by it, there should be an order for specific performance for the sale of apartment 28 at a price of $695,000 which should be taken as having been paid to the defendant on 10 September 2015.

256 I will hear the parties as to the terms of the orders to be made and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

 

Medium Neutral Citation: Paolucci v Makedyn Pty Ltd [2021] NSWCA 215
Hearing dates: 14 July 2021
Decision date: 14 September 2021
Before: Leeming JA at [1];
White JA at [152];
McCallum JA at [167].
Decision:
Appeal dismissed with costs.

Catchwords:
CONTRACT – contract to transfer land, subdivide it and reconvey lots to vendor on which were constructed a House and Duplex – developer failed to provide Layout Plans to vendor of House and Duplex – plans ultimately provided – plans gave rise to dispute as to dimensions of “Duplex” – developer in breach of promise to reconvey lots with House and Duplex constructed – common ground that reasonable not to construct Duplex until dispute resolved – whether order for reconveyance of lots as vacant land plus Lord Cairns’ Act damages appropriate – Soames v Edge (1860) Johns 669; 70 ER 588 considered – whether primary judge misapprehended plaintiff’s case – whether anything turns on misapprehension of plaintiff’s case – whether primary judge erred in proper construction of “Duplex” – whether primary judge erred in failing to address availability of contractual limitation of liability



SPECIFIC PERFORMANCE – nature and availability of remedy – relevance of historic breach – need to establish not just for plaintiff to be confined to damages – damages under Supreme Court Act 1970 (NSW), s 68 (Lord Cairns’ Act) – nature and availability of remedy

https://jade.io/article/834970

 

There is an interesting case where the husband signed a contract of sale for land for both himself and forged his wife's signature (with the agent witnessing both!). The purchasers argued that the husband had the authority to sign on behalf of the wife as her agent and that it was therefore a binding contract.

Court said there was no contract.

Jarjo v Patterson [2022] NSWSC 1049
https://austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2022/1049.html

CONTRACTS – contract for the sale of land – contractual formation – land owned by defendants as joint tenants – authority for one vendor to execute contract on behalf of the other vendor – where second defendant alleges that her signature as vendor on contract for the sale of land was forged by first defendant – where first defendant accepts that he forged second defendant’s signature – where plaintiffs allege that the second defendant generally or specifically authorised the first defendant to sign on her behalf – whether second defendant authorised the first defendant to execute the contract on her behalf – whether objective circumstances of the case demonstrate such authorisation – held that second defendant did not authorise the first defendant to execute the contract on her behalf – no contract held to have come into existence between the plaintiffs and the defendants

 

The link didn't work @Terry_w so I have taken the liberty of re-posting the link

Jarjo v Patterson [2022] NSWSC 1049 (5 August 2022)

It cost the plaintiffs even more as well:

"For the above reasons, the Court will order:

(1) that the plaintiffs pay the second defendant’s costs of the proceedings on the ordinary basis; and
(2) that there otherwise be no order as to costs."​

Jarjo v Patterson (No 2) [2022] NSWSC 1311 (28 September 2022)

 

Think of some strategies that arise on of this case!

 

This one is not a contractual dispute but an equity matter.
Pavlis, George v Pavlis, Emanuel [2022] NSWCA 281
Pavlis, George v Pavlis, Emanuel [2022] NSWCA 281 - BarNet Jade

2 children sued their parents over claiming a beneficial interest in a property owned by the parents due to the work and money put into the property over the years. They failed

HEADNOTE



[This headnote is not to be read as part of the judgment]

The respondents, Mr Emmanuel Pavlis and Mrs Koula Pavlis (referred to as Mr and Mrs Pavlis), bought a property in late 1986. Two of their sons, Mr George Pavlis and Mr Chris Pavlis (referred to as George and Chris), brought proceedings in the Equity Division against their parents, claiming a beneficial interest in the property. George and Chris claimed they made substantial contributions in time, labour and money to the renovation and restoration of the property.

Mr Pavlis died shortly before the hearing of the appeal. Mr and Mrs Pavlis held their title to the property as joint tenants. Mrs Pavlis and Mr Garry Pavlis (the third son of Mr and Mrs Pavlis) were named as Mr Emmanuel Pavlis’ executors.

The primary judge rejected George and Chris’ claim.

The issues before this court were:

(1) whether the primary judge erred in failing to find that the parties were engaged in a joint endeavour to pool their resources and undertake work on the property for mutual benefit,

(2) whether the primary judge erred in finding that the plaintiffs’ motivation for making contributions was, in large measure, for their own commercial benefit,

(3) whether George and Chris established that it was not intended that their parents should enjoy full beneficial ownership of the property if the relationship failed, and

(4) whether a refusal to recognise the existence of an equitable interest in the property amounts to unconscionable conduct.

 

Century Legend Pty Ltd v Ripani [2022] FCAFC 191 (30 November 2022) (Markovic, McElwaine and McEvoy JJ)
Catchwords
CONSUMER LAW - misleading and deceptive conduct - contract of sale for apartment sold “off-the-plan” - where primary judge found render contained in marketing materials misleading and deceptive - whether the primary judge erred in rejecting the evidence of a witness - whether the primary judge erred in finding the exclusion clauses in the contract were ineffective in negating the misleading or deceptive conduct of the appellant - whether the primary judge erred in concluding the respondents were entitled to statutory rescission – appeal allowed in part - limited new trial ordered pursuant to ss 28(1)(f) and 30 of the Federal Court of Australia Act 1976 (Cth)

EVIDENCE – application for leave to adduce further evidence upon hearing of the appeal - exercise of discretion pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) - evidence could have been obtained for the purposes of the trial - no satisfactory explanation offered by the appellant as to failure to obtain evidence prior to the trial - application refused

 

Hong v Gui [2022] NSWCA 245 (01 December 2022) (Macfarlan JA at [1]; Simpson AJA at [2]; Basten AJA at [3].)
This decision has a headnote.
Catchwords
CONTRACTS – contract for sale of land – termination – wrongful termination –– whether repudiation – vendor giving notice to complete had not provided land tax certificate – whether reasonable recipient of notice would understand vendor’s conduct as refusal to perform – vendor’s conduct to be understood in context – vendor communicated about settlement and extended settlement date – purchaser failed to reply or take steps to prepare for settlement – vendor purportedly relied on contractual right of rescission – mistaken failure to provide land tax certificate

 

Proietti v Proietti [2022] NSWCA 234 (17 November 2022) (Mitchelmore JA at [1]; Basten AJA at [120]; Griffiths AJA at [121].)
This decision has a headnote.
Catchwords
APPEALS – procedural fairness – property – proceedings commenced by summons for the appointment of trustees under s 66G of the Conveyancing Act 1919 (NSW) – where self-represented defendant consented to directions in Online Court, and made no applications prior to hearing – where large parts of defendant’s affidavit struck out – whether lack of pleadings or mediation constituted denial of procedural fairness – whether “further hearing” should have been granted – call for “substantive guidance” from Court – no denial of procedural fairness

EVIDENCE – affidavit evidence – proceedings for the appointment of trustees under s 66G of the Conveyancing Act 1919 (NSW) – where large parts of defendant’s affidavit struck out, including based on speculation as to deceased’s state of mind about change to will – whether statement made by deceased’s former solicitor, that he did not change will, relied upon to prove that fact – no applicable exception to hearsay rule – evidence properly rejected or treated as submissions

APPEALS – bias rule – actual or apprehended – proceedings for the appointment of trustees under s 66G of the Conveyancing Act 1919 (NSW) – where primary judge described case as “unremarkable” but for defences raised – where defendant alleged actual and apprehended bias based, principally, on findings against him “on nearly every single issue” – Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 42; [2011] HCA 48 – no actual or apprehended bias demonstrated

LAND LAW – co-ownership – statutory trust for partition – appointment of trustees – where defendant resisted orders for the sale of real property under s 66G of the Conveyancing Act 1919 (NSW) based on promissory estoppel and contract – where primary judge made finding of fact, based on credibility, that there was no agreement between parties not to sell before 2023 – where defendant relied on absence of evidence in text messages with plaintiff concerning pre-2023 sale – no sound foundation for challenge to finding on appeal

LAND LAW – co-ownership – statutory trust for partition – appointment of trustees – where defendant resisted orders for the sale of real property under s 66G of the Conveyancing Act 1919 (NSW) based on proprietary estoppel – where defendant alleged plaintiff owed duty to disclose change to will, removing clause allowing plaintiff continued residency for four years after deceased’s death – where defendant already knew about change, but had subsequent “realisation” that change occurred due to improper pressure applied by plaintiff – “realisation” amounted to no more than speculation

APPEALS – from finding of fact – admission of further evidence – where foreshadowed evidence would not assist appellant given assumption made by primary judge that the fact the subject of the further evidence was proved

 

Hobhouse v Macarthur-Onslow [2022] NSWCA 158 (23 August 2022) (Ward P, Macfarlan and White JJA)
This decision has a headnote.
Catchwords
CONTRACTS — implied term — where the primary judge implied a term into a deed containing an option to purchase land so as to validate the purported exercise of that option — whether the conditions stated in BP Refinery were satisfied — held on appeal that the term was not necessary to give business efficacy to the contract, not “so obvious that it goes without saying” and not consistent with the express terms — further held that it was sufficient that the option, without the implication, was capable of being exercised in many foreseeable circumstances as distinct from all conceivable circumstances

EQUITY — remedies — whether the respondent entitled to relief against forfeiture if option to purchase land was not validly exercised — held on appeal that the respondent did not establish any of the “special heads” of fraud, accident, mistake or surprise, or any other circumstances establishing unconscientious conduct on the part of the appellant — circumstances do not amount to an “accident” where they are reasonably within the contemplation of the parties

 

APD Technology Pty Ltd v Maximo Developments Pty Ltd [2022] FCAFC 141 (25 August 2022) (Moshinsky, Halley and O'Sullivan JJ)
Catchwords
EQUITY – fiduciary duty – real estate agent – where the appellant (APD) was a vendor of land – where the first respondent (MD) acted as APD’s agent for the sale of the property – where the sale price at completion was $24 million plus GST – where the commission charged by MD and paid by APD was $12 million plus GST – where APD contended on appeal that MD breached its fiduciary duty to APD under an agency contract dated 12 October 2016 by procuring APD to enter into an agency contract dated 5 November 2016, under which the commission was greater – where APD contended on appeal that MD failed to disclose material matters to APD before it entered into the 5 November 2016 agency contract – whether APD’s contentions represented a new case on appeal – if so, whether APD should be permitted to run that new case

EQUITY – estoppel – real estate agent – where the appellant (APD) was a vendor of land – where the first respondent (MD) acted as APD’s agent for the sale of the property – where APD and MD entered into an agency contract that specified a particular commission – where MD sent an email to APD setting out the commission it proposed to charge (being $12 million plus GST) – where APD replied by email that it agreed – where MD subsequently charged and APD subsequently paid a commission of $12 million plus GST – where primary judge held that APD was estopped from contending that the commission was other than as set out in the email exchange – whether the primary judge erred in so holding

INSURANCE – professional indemnity insurance – where insuring clause provided cover for civil legal liability for “any claim for compensation” in specified circumstances – where claims were made against the insureds for contravention of ss 18 and 21 of the Australian Consumer Law and breach of fiduciary duty – where insureds sought indemnity for liability in respect of these claims and for defence costs – where the claims against the insureds failed at trial and on appeal – where the primary judge held that the insurer was liable for the insureds’ defence costs – where the insurer argued that the claims against the insureds were properly characterised as claims for restitution or debt – whether defence costs covered by insuring clause

 

Fisher v Degnan [2022] NSWCA 202 (11 October 2022) (Macfarlan and Kirk JJA, Basten AJA)
This decision has a headnote.
Catchwords
CONTRACTS — Contracts requiring written evidence — Statute of frauds — Contract said to record agreement for sale of land — Family arrangement — Construction — Whether contract was an agreement for sale of land — Whether a clause headed “Recitals” was an operative provision — Whether contract a note or memorandum of agreement

APPEALS — Point not taken below — Whether point taken below — Whether claim, though pleaded, proceeded on a different basis at trial