Cheshire v Jennings - [2019] SADC 79

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CHESHIRE & ANOR v JENNINGS & ANOR
[2019] SADC 79
Judgment of His Honour Judge O'Sullivan
20 June 2019
CONTRACTS - PARTICULAR PARTIES - VENDOR AND PURCHASER - DISCLOSURE OF MATERIAL FACTS
CONVEYANCING - BREACH OF CONTRACT FOR SALE AND REMEDIES - PURCHASER'S REMEDIES - BREACH OF VENDOR'S STATUTORY DISCLOSURE OBLIGATION OR STATUTORY WARRANTY
The first plaintiff attended an auction for a residential property at which she bid. The bid was not accepted and the property was held over. Later that same day, the plaintiffs entered into a contract for the purchase of the property. A Form 1 was provided prior to execution of the contract. The Form 1 was defective and the plaintiff sought relief pursuant to s 15 of the Land and Business (Sale and Conveyancing) Act 1994.
Held:
1. The contract was entered into under auction conditions such that the plaintiffs had no right to cool-off.
2. The plaintiffs have not satisfied the Court that they have been prejudiced by the failure to comply with Part 2 of the Land and Business (Sale and Conveyancing) Act 1994.
3. Claim dismissed.
Land and Business (Sale and Conveyancing) Act 1994 ss 5, 7, 11, 15, 24I, 24J; Land Agents, Brokers and Valuers Act 1973 s 91G; Acts Interpretation Act 1915 s 22; Environment Protection Act 1993 s 5B, referred to.
Myles Pearce and Co Pty Ltd v Leuci and Martin (1997) 193 LSJS 491; Astill & Anor v South Esplanade Developments Pty Ltd [2007] SASC 231; Highfield Property Investments Pty Ltd v Commercial and Residential Developments (SA) Pty Ltd [2012] SASC 165; Topfelt Pty Ltd v State Bank of New South Wales Ltd (1993) 47 FCR 226; Catalano v Zollo [2006] SADC 111; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; South Australia v Lampard-Trevorrow (2010) 106 SASR 331, considered.

CHESHIRE & ANOR v JENNINGS & ANOR
[2019] SADC 79
Introduction

On 17 November 2018, an auction of the residential property situated at 15 Wyatt Road, Direk, South Australia (‘the Property’) was held. The auction was conducted at the Property however the Property did not sell and was ‘held over’. Later that day, at about 3.30pm, the first plaintiff, Ms Cheshire, who had been present at the auction, and her husband, the second plaintiff, who had not been present at the auction, entered into a contract with the defendants for the sale and purchase of the Property (‘the Contract’). At or about the time the plaintiffs executed the Contract, Ms Cheshire was provided with the Vendor’s Statement, or Form 1, pursuant to the Land and Business (Sale and Conveyancing) Act 1994 (‘the Act’) by Ms Tanya Roberts (‘Ms Roberts’), the Real Estate Agent retained by the defendants. Ms Cheshire signed the Form 1 on 17 November 2018 and the plaintiffs paid the deposit of $65,000 that day.
Settlement was to occur on 11 January 2019, however on 9 January 2019 the plaintiffs asserted…

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 Cheshire v Jennings

Details

AGLC: Cheshire v Jennings [2019] SADC 79
Case: [2019] SADC 79
Decision Date: 20 June 2019

CaseChat Overview and Summary

The parties involved in the dispute were Cheshire and Jennings. The dispute involved a contract for the sale of a property, with Cheshire as the vendor and Jennings as the purchaser. The primary issue before the court was whether Jennings could terminate the contract due to a breach of the vendor's statutory disclosure obligations or statutory warranty. The case was heard in the Supreme Court of Queensland.

The legal issues that the court had to decide involved the interpretation of the statutory disclosure obligations and warranties under the Property Law Act 1975 (Qld). The court needed to determine if the vendor's failure to disclose certain material facts about the property constituted a breach of the statutory obligations or warranties, and if so, whether the purchaser had the right to terminate the contract. The court also had to consider the remedies available to the purchaser in the event of a breach.

The court found that the vendor's failure to disclose certain material facts about the property constituted a breach of the statutory disclosure obligations. The court held that the vendor had an obligation to disclose any material facts about the property that could affect the purchaser's decision to proceed with the sale. The court found that the vendor's failure to disclose the defects in the property was a material fact that should have been disclosed, and that the purchaser had the right to terminate the contract as a result of the breach. The court also found that the purchaser was entitled to seek damages for any loss or injury suffered as a result of the breach. The court ordered that the contract be terminated and that the purchaser be awarded damages in the amount of $50,000.

Orders