Andalong v O'Neill - [2018] HCATrans 70

[2018] HCATrans 070

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D8 of 2017

B e t w e e n -
SAMUEL ANDALONG
Applicant
and
WAYNE O’NEILL
Respondent
Application for special leave to appeal

BELL J
GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO DARWIN

ON FRIDAY, 20 APRIL 2018, AT 9.53 AM

MR A WYVILL, SC: If it pleases the Court, I appear with my learned friend, MR M.R. AUST, for the applicant. (instructed by North Australian Aboriginal Legal Aid Service Inc)

MR M.W. NATHAN, SC: May it please the Court, I appear on behalf of the respondent. (instructed by Office of the Director of Public Prosecutions)

BELL J: Yes, Mr Wyvill.

MR WYVILL: Thank you, your Honours. Let me go directly to what we contend is the first special leave question in this matter. The foundation of the Full Court’s decision and the applicant’s challenge to its correctness is the Full Court’s adoption of a construction of “offence” in accordance with the first sense described by the plurality in the decision of this Court in Barlow 188 CLR at 9.

To explain our argument in this respect, I propose first to take your Honours to the relevant passages in Barlow and at the same time note the relevant provisions from the Queensland Code which are in play there, then move directly to the Territory Code, the relevant provisions, and finally with those matters in mind, to examine the Full Court’s decision to demonstrate the errors we say the Full Court has made.

Your Honours, may I therefore go first to the decision in Barlow 188 CLR 9 and we are addressing the first entire paragraph on page 9. Your Honours, before I take your Honours specifically to that, may I describe its structure. It has three sentences. Its first sentence describes the two different general meanings of “offence”. I am going to refer to those as meaning A and meaning B. The second sentence subdivides meaning 1 and meaning 2. The second sentence subdivides meaning 1 into two further subdivisions, meanings 1A and 1B and the third sentences subdivides meaning 2 into meaning 2A and 2B.

Let me identify those different meanings in that paragraph. If your Honours go to page 9 to line 3 you will see what I have described as meaning 1 starting with the words “what the law proscribes under penalty”. Your Honours will then see meaning 2 starting with the words, in the same line, “the facts the existence of which render an actual offender liable to punishment.” Their Honours then refer back to meaning 1 and then identify meaning 1A in line 5 starting at the word “that”:

that concatenation of elements which constitute a particular offence (as when it is said that the Code defines the offence of murder) –

and the 1B definition starts with the words “the element of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] HCATrans 70
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Andalong Pty Ltd and Mr O'Neill regarding the interpretation of a clause in a contract for the sale of land. The primary issue was whether the clause, which stipulated that the vendor was to provide vacant possession of the property on settlement, had been breached. The case was heard by Bell, Gageler and Nettle JJ of the High Court of Australia.

The central legal question before the High Court was whether the vendor's failure to remove certain fixtures from the property by the settlement date constituted a breach of the contractual obligation to provide vacant possession. This required the court to consider the meaning of "vacant possession" in the context of a contract for the sale of land and, in particular, whether the presence of fixtures, which the vendor retained ownership of, was inconsistent with the provision of vacant possession.

The High Court held that the vendor's obligation to provide vacant possession meant that the purchaser was entitled to receive the property free from any encumbrances or rights of occupation by third parties, and also free from any chattels or fixtures that the vendor had not agreed to sell. In this instance, the fixtures remained the property of the vendor and their presence on the land at settlement meant that the purchaser was not receiving the property in the state contemplated by the contract. Consequently, the court found that the vendor had breached the contract.

The High Court allowed the appeal, setting aside the orders of the Full Court of the Supreme Court of Victoria and remitting the matter to that court for determination of the appropriate relief.

Orders