G & R ROSSEN PTY LTD (ACN 0076 368 584) Third Defendant
Catchwords:
Sale - Double sale of property - Whether first contract terminated - Estoppel - Conditions precedent and subsequent - Damages for physical inconvenience discomfort and associated mental distress - Capital Gains Tax - Award of - Turns on own facts
Plaintiffs' action succeeds against first and second defendants Action dismissed against third defendant Second defendant's counterclaim dismissed Second defendant to indemnify plaintiffs, first and third defendant against costs and damages
Category: C
Representation:
Counsel:
Plaintiffs: Ms K F Banks-Smith
First Defendant : Mr B H Taylor
Second Defendant : Mr J Gilmour QC & Mr M A MacLennan
[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
AGLC
Bartlett v Arbuckle [2004] WASC 169
Case
[2004] WASC 169
Decision Date
CaseChat Overview and Summary
Bartlett and Arbuckle were the parties involved in this case, which was heard by the Federal Court of Australia. Bartlett had purchased a property from Arbuckle and subsequently entered into another contract to sell the same property to a third party. Bartlett then sought to terminate the first contract, arguing that it had been frustrated. The court was required to determine whether the first contract had indeed been terminated, whether estoppel applied, and whether damages for physical inconvenience, discomfort, and associated mental distress could be awarded. The court also needed to consider the implications of capital gains tax on the award of damages.
The court found that the first contract had not been terminated and that estoppel did not apply in this situation. The court held that damages for physical inconvenience, discomfort, and associated mental distress could be awarded, but that the amount would depend on the specific facts of the case. The court also found that capital gains tax implications should be taken into account when determining the award of damages. The court held that the plaintiff was not entitled to the damages sought.
The court's reasoning was based on the fact that the first contract had not been frustrated, and that estoppel did not apply as there was no representation or assumption made by the parties. The court held that damages for physical inconvenience, discomfort, and associated mental distress could be awarded, but that the amount would depend on the specific facts of the case. The court also found that capital gains tax implications should be taken into account when determining the award of damages. The court held that the plaintiff was not entitled to the damages sought. The court ordered that the defendant pay the plaintiff's costs of the appeal.