Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Carter v Mehmet [2021] NSWCA 286 Hearing dates: 20 October 2021 Date of orders: 25 November 2021 Decision date: 25 November 2021 Before: Meagher JA; Gleeson JA; Payne JA Decision: (1) Appeal allowed.
(2) Set aside the orders of Ward CJ in Eq made on 17 April 2020 and in lieu thereof order:
(a) Judgment for the appellants against the respondents in the sum of $480,832.20 plus interest thereon from 29 November 2015 pursuant to s 100 of the Civil Procedure Act 2005 (NSW).
(b) Respondents pay the appellants’ costs of the proceeding below, including (as per the orders of the Court of Appeal made on 13 December 2018) the costs of the separate determination the subject of the proceeding before Darke J in 2017.
(3) Respondents pay the appellants’ costs of the appeal.
Catchwords: CONTRACTS — termination — repudiation of contract — implied refusal to perform — where purchasers raised requisitions on title — whether requisitions properly made — whether vendors adequately answered requisitions — whether vendors evinced intention no longer to be bound by contract
CONTRACTS — termination — repudiation of contract — erroneous construction of contract — where vendors insisted on payment of default interest — whether repudiation by insisting on erroneous construction of contract
ENVIRONMENT AND PLANNING — heritage conservation — protection of Aboriginal heritage — National Parks and Wildlife Act 1974 (NSW) — meaning of “Aboriginal object”
LAND LAW — conveyancing — contract for sale — defect in title — whether presence of Aboriginal objects on land constitutes defect in title — whether Aboriginal objects on land — whether presence of Aboriginal objects constituted defect in title where land already subject to development constraints
LAND LAW — conveyancing — contract for sale — termination in accordance with rule in Flight v Booth — whether presence of Aboriginal objects materially or substantially affected contract — no Aboriginal objects on land — no material or substantial effect
LAND LAW — conveyancing — contract for sale — requisitions — where requisitions based on plausible contention of presence of Aboriginal objects — whether purchasers’ objections and requisitions on title properly made — whether vendors’ responses sufficient
Legislation Cited: Civil Procedure Act 2005 (NSW), s 100
Coastal Protection Act 1979 (NSW)
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 18
Conveyancing Act 1919 (NSW), s 55
Environmental Planning and Assessment Act 1979 (NSW)
Fauna Conservation Act 1974 (Qld), s 7
Home Building Act 1989 (NSW)
Interpretation Act 1987 (NSW), s 33
Mine Subsidence Compensation Act 1961 (NSW), s 15
National Parks and Wildlife (Amendment) Act 1969 (NSW)
National Parks and Wildlife Act 1967 (NSW), ss 3, 33D
National Parks and Wildlife Act 1974 (NSW), ss 2A, 5, 83, 85, 85A, 86
Real Property Act 1900 (NSW)
State Environmental Planning Policy No 14—Coastal Wetlands
Cases Cited:
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- AGLC
- Carter v Mehmet [2021] NSWCA 286
- Case
- [2021] NSWCA 286
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the purchasers’ requisitions on title were properly made, whether the vendors had adequately responded to those requisitions, and whether the vendors’ conduct amounted to a repudiation of the contract. Specifically, the court had to consider whether the presence of Aboriginal objects on the land, as raised in the requisitions, constituted a defect in title or a material or substantial effect on the contract, particularly in light of existing development constraints. The court also had to determine if the vendors’ insistence on payment of default interest, based on an erroneous construction of the contract, amounted to a repudiation.
The Court of Appeal reasoned that the purchasers’ requisitions, while based on a plausible contention regarding the presence of Aboriginal objects, were not properly made as there were no Aboriginal objects on the land. Consequently, the presence of such objects did not constitute a defect in title or a material or substantial effect on the contract under the rule in *Flight v Booth*. The court found that the vendors had adequately answered the requisitions and had not evinced an intention no longer to be bound by the contract. Furthermore, the vendors’ insistence on default interest was based on an erroneous construction of the contract, but this alone did not amount to repudiation.
The Court of Appeal allowed the appeal, setting aside the orders of the primary judge. The court entered judgment for the appellants (vendors) against the respondents (purchasers) for a specified sum plus interest, and ordered that the respondents pay the appellants’ costs of the proceedings both at first instance and on appeal.
Orders
Orders of the court
(1) Appeal allowed.
(2) Set aside the orders of Ward CJ in Eq made on 17 April 2020 and in lieu thereof order:
(a) Judgment for the appellants against the respondents in the sum of $480,832.20 plus interest thereon from 29 November 2015 pursuant to s 100 of the Civil Procedure Act 2005 (NSW).
(b) Respondents pay the appellants’ costs of the proceeding below, including (as per the orders of the Court of Appeal made on 13 December 2018) the costs of the separate determination the subject of the proceeding before Darke J in 2017.
(3) Respondents pay the appellants’ 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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