Court of Appeal
New South Wales
Case Title: Adicho v Dankeith Homes Pty Ltd Medium Neutral Citation: [2012] NSWCA 316 Hearing Date(s): 21 September 2012 Decision Date: 28 September 2012 Jurisdiction: Before: Meagher JA at [1];
Sackville AJA at [31];
Tobias AJA at [32].Decision: (1) Appeal dismissed.
(2) The appellant to pay the respondent's (Dankeith's) costs of the appeal.[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: CONTRACT - formation - sale of land - whether intention to create legal relations - exchange of written contracts - agreement as to payment of deposit not reflected in written contracts - whether evidence established exchange not intended to have ordinary legal consequences
CONTRACT - collateral agreement as to deposit - unenforceable because inconsistent with contract for sale - ineffective as parol variation of contract required to be in writing
Legislation Cited: Conveyancing Act 1919
Fair Trading Act 1987
Trade Practices Act 1974Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570
Allen v Carbone [1975] HCA 14; 132 CLR 528
Brien v Dwyer [1978] HCA 50; 141 CLR 378
Damon Compania Naviera S.A. v Hapag-Lloyd International S.A. [1985] 1 WLR 435
Dowling v Rae [1927] HCA 5; 39 CLR 363 at 371-379
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; 218 CLR 471
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95
Esanda Ltd v Burgess [1984] 2 NSWLR 139
Fitzgerald v Masters [1956] HCA 53; 95 CLR 420 at 426-427
Hoyt's Pty Ltd v Spencer [1919] HCA 64; 27 CLR 133
Maybury v Atlantic Union Oil Co Ltd [1953] HCA 89; 89 CLR 507
Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18; 131 CLR 286
Phillips v Ellinson Brothers Pty Ltd [1941] HCA 35; 65 CLR 221
Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449
Sindel v Georgiou [1984] HCA 58; 154 CLR 661
Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418
Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd [1957] HCA 10; 98 CLR 93
Water Board v Moustakas [1988] HCA 12; 180 CLR 491Texts Cited: Category: Principal judgment Parties: John Adicho (Appellant)
Dankeith Homes Pty Ltd (First Respondent)
Graeme Bruce Dougherty t/as Dougherty & Smith (Second Respondent)Representation - Counsel: Counsel:
R K Newton (Appellant)
D H Murr SC, Ms M M Fraser (First Respondent)
No appearance (Second Respondent)- Solicitors: Solicitors:
Edmond Khoury Solicitors (Appellant)
Noel F Bracks & Company (First Respondent)
No appearance…
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- AGLC
- Adicho v Dankeith Homes Pty Ltd [2012] NSWCA 316
- Case
- [2012] NSWCA 316
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the parties had the intention to create legal relations, given the discrepancy between the written contracts and the alleged oral agreement concerning the deposit. Furthermore, the court had to determine if a collateral agreement regarding the deposit was enforceable, or if it was rendered ineffective by its inconsistency with the main contract for sale, or by the parol evidence rule and the requirement for variations of land sale contracts to be in writing.
The Court of Appeal dismissed the appeal. The judges reasoned that the written contracts, which were exchanged and otherwise appeared to be in order, were intended to represent the entirety of the agreement between the parties. The alleged oral agreement concerning the deposit was found to be inconsistent with the terms of the written contract, and therefore could not stand as a collateral agreement. Moreover, any attempt to vary the written contract orally regarding the deposit would have been ineffective, as contracts for the sale of land are required to be in writing.
Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
(1) Appeal dismissed.
(2) The appellant to pay the respondent's (Dankeith's) costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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