New South Wales
Court of Appeal
CITATION: BAIYAI PTY LTD v GUY [2009] NSWCA 65 HEARING DATE(S): 20-21/10/2008
JUDGMENT DATE:
1 April 2009JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Handley AJA at 3 DECISION: (1) Appeal allowed in part;
(2) Judgment of the District Court for $147,444 and costs in favour of the first plaintiff against the third defendant set aside except as to costs;
(3) Order that there be substituted judgment in favour of the first plaintiff against the third defendant for $198,990 inclusive of pre-judgment interest with affect from 8 August 2007;
(4) Cross appeal dismissed;
(5) Respondent and cross appellant to pay twenty five per cent of the appellant's costs of the appeal and cross appeal.CATCHWORDS: DAMAGES – failure to mitigate loss. - VALUATION – value of land – offer by intending purchaser admissible. - VENDOR AND PURCHASER – Vendor not willing & able to perform contract – not entitled to recover price. PARTIES: Baiyai Pty Limited - Appellant/Cross-Respondent
Gregory Guy - Respondent/Cross-Appellant
Lyndell Joy Humphrey - Second Cross-RespondentFILE NUMBER(S): CA 40700 of 2007 COUNSEL: M Bradford - Appellant
D L Davies SC with J Oakley - RespondentSOLICITORS: Booth Brown Samuels & Olney - Appellant
Ebsworth & Ebswroth - RespondentLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 2004 of 2005 LOWER COURT JUDICIAL OFFICER: Rolfe DCJ LOWER COURT DATE OF DECISION: 8 August 2007
CA 40700/07
1 April 2009
BEAZLEY JA
GILES JA
HANDLEY AJA
BAYAI PTY LIMITED (ACN 077514544) v GREGORY GUY
CATCHWORDS
DAMAGES – failure to mitigate loss.
VALUATION – value of land – offer by intending purchaser admissible.
VENDOR AND PURCHASER – Vendor not willing & able to perform contract – not entitled to recover price.
A former client brought an action in the District Court against the solicitor who acted for it in a conveyancing transaction which culminated in a transfer of title without receipt of the balance of purchase money expressed in “trade” dollars. The Trial Judge found for the client and awarded damages and interest of $147,444.00 based on the loss of the value of the land at the date of settlement. The client appealed, challenging the findings that the land was worth $165,000 at the relevant date and that the client had failed to mitigate its loss. The solicitor cross-appealed challenging the findings on causation and quantum. Held: (1) the Judge’s decision on the value of the land at the relevant date could not be disturbed; (2) the decision to reduce the client’s damages because it had failed to mitigate its loss by abandoning its action to recover the balance of the purchase price was erroneous. The balance of the purchase price in “trade” dollars was only payable when the vendor had repaid a loan from the purchaser and the vendor had never been ready, willing and able to perform this obligation. The client’s damages should therefore be increased by $28,500.00, the amount deducted by the Trial Judge for…
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- AGLC
- Baiyai Pty Ltd v Guy [2009] NSWCA 65
- Case
- [2009] NSWCA 65
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the District Court had erred in its assessment of damages, specifically concerning the valuation of the land and the principle of failure to mitigate loss. A key issue was whether an offer made by a subsequent intending purchaser was admissible and relevant to determining the market value of the land at the time of the vendor's breach.
The Court of Appeal held that the District Court had erred in its valuation of the land. It found that the offer from the subsequent purchaser was admissible and relevant evidence of the land's market value. The Court applied the principle that a vendor who is unwilling and unable to perform a contract for the sale of land is not entitled to recover the full purchase price. Instead, the vendor is entitled to the difference between the contract price and the market value of the land at the time of the breach, less any expenses incurred. The Court also considered the principle of mitigation, noting that the purchaser had taken reasonable steps to mitigate their loss.
The appeal was allowed in part, and the District Court's judgment was set aside except as to costs. A substituted judgment was entered in favour of Guy against Baiyai Pty Ltd for $198,990, inclusive of pre-judgment interest from 8 August 2007. The cross-appeal was dismissed, and the parties were ordered to share the costs of the appeal and cross-appeal.
Orders
Orders of the court
(1) Appeal allowed in part; (2) Judgment of the District Court for $147,444 and costs in favour of the first plaintiff against the third defendant set aside except as to costs; (3) Order that there be substituted judgment in favour of the first plaintiff against the third defendant for $198,990 inclusive of pre-judgment interest with affect from 8 August 2007; (4) Cross appeal dismissed; (5) Respondent and cross appellant to pay twenty five per cent of the appellant's costs of the appeal and cross appeal.
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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