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