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Brunton v Hennessy

Brunton v Hennessy

Case [2020] NSWSC 972 29 July 2020

Contract Formation

Specific Performance

Admissibility of Evidence

Damages

Property Law

Equity

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Supreme Court

New South Wales

Medium Neutral Citation: Brunton v Hennessy [2020] NSWSC 972
Hearing dates: 6-7 July 2020
Date of orders: 29 July 2020
Decision date: 29 July 2020
Jurisdiction: Equity
Before: Darke J
Decision:
Plaintiffs entitled to nominal damages for breach of Additional Condition 16 of contract for sale. Plaintiffs otherwise fail to establish any breach of the contract. Submissions to be made as to costs.

Catchwords:
LAND LAW – contract for sale of land – plaintiffs enter into contract with first defendant to purchase lot in an unregistered subdivision – access to proposed lot to be by rights of way over vendor’s land – road already constructed over proposed right of way – whether contract contains term that obliges vendor to construct road on right of way to standard set by development consent to be issued – held that contract contains no express or implied term to that effect
EQUITY – remedies – specific performance – condition of contract for sale of land required vendor to install cattle grids at various locations along right of way – vendor fails to do so – purchasers seek specific performance – purchasers fail to show that damages are an inadequate remedy – not shown that installation of grids would serve any useful purpose for purchasers – specific performance refused – nominal damages awarded

Cases Cited:
Beswick v Beswick [1968] AC 58
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Codelfa Construction Pty Ltd State Rail Authority New South Wales (1982) 149 CLR 337
Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32
Coulls v Bagot's Executor and Trustee Co Ltd (1967) 119 CLR 460
In the matter of ACT Land Pty Ltd (in liquidation) [2019] NSWSC 1860
Lawrence v Ciantar [2020] NSWCA 89
New South Wales v Stevens (2012) 82 NSWLR 106; [2012] NSWCA 415
Wardy v Hardy [2002] NSWCA 215
Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17
Wilson v North Hampton and Banbury Junction Railway Co (1874) LR 9 Ch App 279

Category: Principal judgment
Parties: Paul Charles Brunton (First Plaintiff)
Robyn Joy Brunton (Second Plaintiff)
Paul James Hennessy (First Defendant)
Peter Lynch (Second Defendant)
Representation:
Counsel:
Mr M Heath (Plaintiffs)
Mr C E Alexander (First Defendant)
Solicitors:
McLaughlin & Riordan (Plaintiffs)
Campbell Paton & Taylor (First Defendant)
Kenny Spring Solicitors (Second Defendant)

File Number(s): 2019/196326
Publication restriction: None

Judgment

Introduction

The plaintiffs, Mr Paul Brunton and Ms Robyn Brunton, commenced these proceedings by Statement of Claim filed on 25 June 2019. The plaintiffs are the owners of two adjoining parcels of land, each of about 100ha, being Lot 4 in Deposited Plan 1224059 and Lot 2 in Deposited Plan 1228411. The lots were created by two separate subdivisions of land within a property known as “Macquarie”, which is located off the O’Connell Road near Brewongle, south-east of Bathurst. The first defendant, Mr Paul Hennessy, is the owner of “Macquarie”.
The plaintiffs…

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 Brunton v Hennessy

Details

AGLC: Brunton v Hennessy [2020] NSWSC 972
Case: [2020] NSWSC 972
Decision Date: 29 July 2020

CaseChat Overview and Summary

In Brunton v Hennessy, the plaintiffs sought to enforce a contract for the sale of land against the first defendant. The plaintiffs had entered into a contract with the first defendant to purchase a lot in an unregistered subdivision. The access to the proposed lot was to be by rights of way over the vendor's land. A road had already been constructed over the proposed right of way. The central issue was whether the contract contained a term that obliged the vendor to construct the road on the right of way to the standard set by the development consent to be issued. Additionally, the plaintiffs sought specific performance of a condition in the contract that required the vendor to install cattle grids at various locations along the right of way.

The court held that the contract contained no express or implied term to the effect that the vendor was required to construct the road to the standard set by the development consent. The plaintiffs had failed to demonstrate that damages were an inadequate remedy for the vendor's failure to install the cattle grids. The court found that the installation of the grids would not serve any useful purpose for the plaintiffs. Consequently, the plaintiffs' application for specific performance was refused, and the court awarded the plaintiffs nominal damages.

The court's reasoning focused on the absence of any explicit or implicit obligation on the vendor to construct the road to the standard specified in the development consent. The plaintiffs' argument that the vendor should have built the road to this standard was rejected because there was no such requirement in the contract. Furthermore, the plaintiffs' application for specific performance was denied because they failed to show that damages would be an inadequate remedy for the vendor's failure to install the cattle grids. The court concluded that the installation of the grids would not serve any useful purpose for the plaintiffs, thereby justifying the refusal of specific performance. The plaintiffs were awarded nominal damages as a result.

Orders