Brian David McFarlane v Danny Stuart Reffold

[2015] HCASL 1

BRIAN DAVID MCFARLANE

v

DANNY STUART REFFOLD

[2015] HCASL 1
A21/2014

1. The applicant commenced proceedings in the District Court of South Australia (Stretton DCJ) claiming damages arising out of the respondent's failure to settle under a contract for the sale of certain land.  The determinative issue turned on whether the vendor's warranty that no improvements had been erected on the land without necessary consents and approvals, contained in cl 17, imposed a contractual obligation to be performed by the vendor under cl 22, which dealt with default by the vendor.  Stretton DCJ and the majority in the Full Court of the Supreme Court of South Australia (Kourakis CJ and Vanstone J) concluded that it did not.  Gray J, in dissent, concluded that it did. 

2. The applicant applies for special leave to appeal from the orders of the Full Court. The applicant does not have legal representation and his application falls to be determined under r 41.10 of the High Court Rules 2004 (Cth).

3. The applicant requires a substantial enlargement of time under the Rules in which to file the application[1].  His affidavit filed in support of the application does not provide an adequate explanation for the delay of nearly 20 months. 

   [1]High Court Rules 2004 (Cth), r 41.02.1 provides that an application shall be filed within 28 days after the judgment below was pronounced.

4. The applicant's written case relies on Gray J's analysis of the relationship between cll 17 and 22 of the contract.  The applicant also seeks to raise issues that were not ventilated below:  an alleged conspiracy involving the respondent and a claimed conflict of interest on the part of the conveyancer. 

5. The division in the Full Court turned on the terms of the contract and not on any issue of principle.  Taking into account the delay in applying for special leave, it cannot be said that the interests of the administration of justice are engaged by the application. 

6. The application is dismissed.

1. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
5 March 2015 S.J. Gageler