CITATION: Brothers v Park and Anor [2004] NSWCA 241 HEARING DATE(S): 8 July 2004 JUDGMENT DATE:
23 July 2004JUDGMENT OF: Giles JA at 1; Ipp JA at 98; Wood CJatCL at 99 DECISION: (1) Appeal upheld in part. (2) Set aside the judgment and order for costs given and made on 11 November 2003, and in lieu thereof judgment for $570,112 taking effect on 11 November 2003 and an order that the defendant pay sixty per cent of the plaintiffs' costs. (3) Appellant pay the respondents' costs of the appeal. CATCHWORDS: Vendor and purchasers - sale of farming property - representation as to Departmental approval to use of part for farming - clause in contract entitling purchasers to terminate if letter evidencing approval not obtained - another clause giving right of entry to prepare ground for crops in locations first approved by vendor - entry and planted and tended crop - representation false - letter not obtainable - purchasers did not terminate - vendor purported to rescind for other reasons - refused to allow purchasers to enter - rescission held ineffective - sale completed - too late to prepare ground for a further crop - whether no causation from false representation because purchasers could have terminated but did not - held causation remained because decision to continue with contract a reasonable decision itself consequential on entry into the contract under the influence of the false representation - whether the loss of profits from the further crop was too remote - held no because, on the evidence, within the contemplation of the parties - whether that loss of profits not caused by refusal of entry because locations for the further crop not proposed and so not approved by vendor - whether this point could be taken on appeal when not taken at trial - whether vendor's conduct dispensed with need for prior approval of locations - held point could be taken and succeeded - damages reduced. D CASES CITED: Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310;
Allen v Bega Valley Council (CA, 22 December 1994, unreported);
Alghussein Establishment v Eton College (1988) 2 WLR 587;
Austral Standard Cable Pty Ltd v Walker Nominees Pty Ltd (1992) 26 NSWLR 524;
Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279;
Cheall v Association of Professional Executive Clerical and Computer Staff (1983) 2 AC 180;
Foran v Wight (1989) 168 CLR 358;
Grozier v Tate (1946) 16 LGR (NSW) 57;
Hadley v Baxendale (1854) 9 Exch 341; (1854) 156 ER 145;
Henjo Investments Pty Ltd v Collins Marrickville (No 2) (1989) 40 FCR 76;
Howard v Pickford Tool Co Ltd (1951) 1 KB 417;
Lucas v Centrepoint Freehold Pty Ltd (1984) 1 FCR 110
McAllister v Richmond Brewing Co (NSW) Pty Ltd (1942) 42 SR 187;
Multicon Engineering Pty Ltd v Federal Airports Corporation (2000) 47 NSWLR 631;
Peter Turnbull & Co Pty Ltd v Mundus…
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Details
- AGLC
- Brothers v Park [2004] NSWCA 241
- Case
- [2004] NSWCA 241
- Decision Date
CaseChat Overview and Summary
In the case of *Brothers v Park*, the vendor and purchasers of a farming property disputed the consequences of a false representation made by the vendor regarding departmental approval for the use of part of the land for farming. The contract contained a clause allowing the purchasers to terminate if a letter evidencing this approval was not obtained, alongside a clause granting the purchasers a right of entry to prepare ground for crops in locations first approved by the vendor. Despite the representation being false and the letter unobtainable, the purchasers did not terminate the contract. The vendor subsequently purported to rescind the contract for other reasons and refused the purchasers entry, which was later held to be ineffective, and the sale was completed.
The central legal issues before the court were whether the purchasers' decision not to terminate the contract negated causation for the loss of profits from a further crop, whether such loss of profits was too remote, and whether the vendor's refusal of entry caused the loss of profits from the further crop, particularly given that specific locations for this crop had not been proposed or approved. The court also considered whether the vendor could raise the point on appeal that the loss of profits was not caused by the refusal of entry because locations were not proposed, when this point had not been taken at trial.
The court reasoned that causation for the loss of profits remained despite the purchasers' decision not to terminate, as this decision was a reasonable one made in consequence of entering the contract under the influence of the false representation. The loss of profits was held not to be too remote as it was within the contemplation of the parties. However, the court allowed the vendor to take the point on appeal that the loss of profits from the further crop was not caused by the refusal of entry because the necessary prior approval of locations had not been obtained. The court found that the vendor's conduct did not dispense with the need for prior approval of locations, and therefore this point succeeded, leading to a reduction in damages.
The appeal was upheld in part. The judgment and order for costs made on 11 November 2003 were set aside. In lieu thereof, judgment was entered for the purchasers for $570,112, taking effect on 11 November 2003, and the defendant was ordered to pay sixty per cent of the plaintiffs' costs. The appellant was ordered to pay the respondents' costs of the appeal.
The central legal issues before the court were whether the purchasers' decision not to terminate the contract negated causation for the loss of profits from a further crop, whether such loss of profits was too remote, and whether the vendor's refusal of entry caused the loss of profits from the further crop, particularly given that specific locations for this crop had not been proposed or approved. The court also considered whether the vendor could raise the point on appeal that the loss of profits was not caused by the refusal of entry because locations were not proposed, when this point had not been taken at trial.
The court reasoned that causation for the loss of profits remained despite the purchasers' decision not to terminate, as this decision was a reasonable one made in consequence of entering the contract under the influence of the false representation. The loss of profits was held not to be too remote as it was within the contemplation of the parties. However, the court allowed the vendor to take the point on appeal that the loss of profits from the further crop was not caused by the refusal of entry because the necessary prior approval of locations had not been obtained. The court found that the vendor's conduct did not dispense with the need for prior approval of locations, and therefore this point succeeded, leading to a reduction in damages.
The appeal was upheld in part. The judgment and order for costs made on 11 November 2003 were set aside. In lieu thereof, judgment was entered for the purchasers for $570,112, taking effect on 11 November 2003, and the defendant was ordered to pay sixty per cent of the plaintiffs' costs. The appellant was ordered to pay the respondents' costs of the appeal.
Orders
Orders of the court
(1) Appeal upheld in part. (2) Set aside the judgment and order for costs given and made on 11 November 2003, and in lieu thereof judgment for $570,112 taking effect on 11 November 2003 and an order that the defendant pay sixty per cent of the plaintiffs' costs. (3) Appellant pay the respondents' costs of the 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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