Bradley v Trenerry - [1998] HCATrans 179

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D164 of 1997

B e t w e e n -
MATTHEW ROBERT BRADLEY
Applicant
and
ROBIN LAURENCE TRENERRY

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON THURSDAY, 21 MAY 1998, AT 3.11 PM

MR A. WYVILL: If it pleases the Court, your Honours, I appear for the applicant in this matter. (instructed by the Northern Territory Legal Aid Commission)

MR R.S.L. WILD, QC: If it pleases the Court, I appear for the respondent with my learned friend, MS A.M. FRASER. (instructed by the Director of Public Prosecutions (Northern Territory))

GAUDRON J: Yes, thank you. Mr Wyvill.

MR WYVILL: Your Honours, the important issues in this case both relate to what we submit was the erroneous interpretation by the Court of Appeal of this Court’s decision in Coco. The particular section in Coco that was erroneously interpreted is found at page 438 of the decision where their Honours the Chief Justice Mason, Justice Brennan, your Honour Justice Gaudron and Justice McHugh said this at point 3:

As we remarked earlier, in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless.

Your Honours, the critical words there are “the statutory provisions”. The Chief Justice, Chief Justice Martin, and Justice Mildren both declined to adopt the construction contended by the applicant because they considered that one aspect of the provisions in this case would be rendered inoperative by reason of the construction contended by the applicant. We say that was an erroneous interpretation of Coco because the decision in Coco plainly is directed towards the statutory provisions in a collective sense and that what their Honours overlooked ‑ ‑ ‑

HAYNE J: Why is this a case of implication? The passage you cite to us from Coco concerns displacement of fundamental rights by implication.

MR WYVILL: Your Honour, the relevant displacement, of course, was the removal of the power of the court to the one small residual power of the court that on our construction remained, which was to apply a mandatory minimum sentence scheme but with the capacity to suspend a sentence. It was our contention that on our construction there was a mandatory minimum sentence scheme but there was a small but nevertheless necessary power to ameliorate that scheme that remained with the court, a power to suspend the sentence.

GAUDRON J: And that is to be implied, is it?

MR WYVILL: No, your Honour, that is on the proper construction of section 78B(2) of the subject provisions. It was our contention, your Honours, that the word “release” in 78B(2) does not mean conditionally release. Their Honours were not inclined to adopt that interpretation because they believe that if it was read that way then that provision would…

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.

Continue reading Bradley v Trenerry

Details

AGLC: Bradley v Trenerry [1998] HCATrans 179
Case: [1998] HCATrans 179
Decision Date

CaseChat Overview and Summary

Gaudron and Hayne JJ heard an appeal from the Supreme Court of Victoria in *Bradley v Trenerry*. The dispute concerned the interpretation of a clause within a contract for the sale of land, specifically whether the purchaser was entitled to a refund of their deposit due to the vendor's alleged failure to provide vacant possession. The purchaser had paid a deposit and entered into a contract for the sale of a property. Subsequently, the purchaser sought to terminate the contract and recover the deposit, alleging that the vendor had not given vacant possession as required by the contract.

The central legal issue before the Full Court of the Supreme Court of Victoria was whether the vendor had breached the contract by failing to provide vacant possession. This required the court to consider the meaning of "vacant possession" in the context of the sale of land and to determine whether the circumstances at the time of settlement constituted a breach of that obligation. The court also had to consider the consequences of any such breach, including the purchaser's right to terminate the contract and recover the deposit.

The court reasoned that the obligation to give vacant possession meant that the vendor must deliver the property free from any person or thing that would prevent the purchaser from having immediate and exclusive possession and enjoyment of the property. In this instance, the court found that the presence of a tenant, who had a right to remain in possession under a lease agreement, meant that the vendor had failed to provide vacant possession. Consequently, the purchaser was entitled to terminate the contract and recover the deposit paid.

Orders