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Ciavarella v Polimeni

Ciavarella v Polimeni

Case [2008] NSWSC 234 20 March 2008

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CITATION: Ciavarella v Polimeni [2008] NSWSC 234

HEARING DATE(S): 28, 29 February 2008

JUDGMENT DATE :
20 March 2008

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Order that the first and second defendants convey the relevant property to the plaintiff.

CATCHWORDS: CONTRACTS [27][31]- Acceptance- Construction of tender document- Whether written notification of acceptance from vendor is mandatory- Held "Yes"- No written notification of acceptance- No formal contract. CONTRACTS [75]- Informal contract within the meaning of the "fourth class" of Masters v Cameron- Lack of written note or memorandum- Part performance- Acts constituting part performance must be in performance of the contract, not merely in reliance on it. ESTOPPEL [32]- Proprietary estoppel by encouragement- Whether fulfilment of expectation disproportionate or inequitable- Calculation of equitable compensation- Reasonable foreseeability of plaintiff's expenditure in reliance on the defendants' representation.

LEGISLATION CITED: Conveyancing Act 1919, s 54A
Duties Act 1997, s 304

CATEGORY: Principal judgment

CASES CITED: 8 Parriwi Road Pty Ltd v Raffan [1970] 2 NSWR 428
Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd [1982] QB 84
Australian Property & Management Pty Ltd v Devefi Pty Ltd (1997) 7 BPR 15,255
Barnes v Alderton [2008] NSWSC 107
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
Cameron v Murdoch [1983] WAR 321
Cameron v Murdoch (1986) 60 ALJR 280; 63 ALR 575 (PC)
Cauduro v Perpetual Trustee Co Ltd (1975) 1 BPR 9337
Craney v Bugg [1971] 1 NSWLR 13
CTM Nominees Pty Ltd v Galba Pty Ltd (1982) 2 BPR 9588
Dent v Moore (1919) 26 CLR 316
Eccles v Bryant & Pollock [1948] Ch 93
Enrico Furst & Co v WE Fischer Ltd [1960] 2 Lloyd's Rep 340
Fleetwood-Hesketh v Commissioners of Inland Revenue [1936] KB 351
GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Grant v GUS Properties (NSW) Pty Ltd (1981) 2 BPR 9465
Greasley v Cooke [1980] 1 WLR 1306
Grummit v Natalisio [1968] VR 156
Halloran v Minister Administering National Parks and Wildlife Act 1974 (2006) 80 ALJR 519
ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue (2003) 12 BPR 22,941
Jennings v Rice [2003] 1 P & CR 100
Levitt v Illawarra Seafoods Pty Ltd (1982) 2 BPR 9503
Maddison v Alderson (1883) 8 App Cas 467
Margripilis v Baird [1926] St R Qd 89
Masters v Cameron (1954) 91 CLR 353
McBride v Sandland (1918) 25 CLR 69
McPherson v King (1975) 1 BPR 9447
Myers v Ross (1935) 10 Fed Supp 409
N Litterco & Company Inc v Glassman Construction Company Inc 319 F (2d) 736 (1963)
Nicholas v Paspaley Properties Pty Ltd v Commissioner of Taxes (1991) 103 FLR 305
Official Trustee in Bankruptcy v D'Jamirze (1999) 48 NSWLR 416
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Riches v Hogben [1985] 2 Qd R 292
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Stratulatos v…

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 Ciavarella v Polimeni

Details

AGLC: Ciavarella v Polimeni [2008] NSWSC 234
Case: [2008] NSWSC 234
Decision Date: 20 March 2008

CaseChat Overview and Summary

Ciavarella v Polimeni involved a dispute regarding the formation of a contract between the parties. The plaintiff, Ciavarella, claimed that the defendant, Polimeni, had made representations that led to the expectation of a formal contract for the sale of property. The defendants contended that no formal contract existed due to the absence of written acceptance. The matter was heard in the Supreme Court of New South Wales.

The court needed to determine whether the tender document required written notification for acceptance to form a valid contract and whether the acts of the parties constituted part performance of an informal contract. Additionally, the court considered whether the plaintiff was entitled to proprietary estoppel relief and, if so, the appropriate measure of compensation.

The court held that the tender document stipulated written notification as a mandatory requirement for acceptance, and without it, no formal contract was formed. Regarding the informal contract, the court ruled that the acts of the parties did not constitute part performance of the alleged contract because they were not in performance of the contract itself. Concerning proprietary estoppel, the court found that the plaintiff had a valid claim, as the defendants' conduct led the plaintiff to reasonably expect a contract. The court also determined that the compensation should be calculated based on the reasonable foreseeability of the plaintiff's expenditure in reliance on the defendants' representations.

The court ordered the defendants to pay the plaintiff an amount reflecting the reasonable foreseeability of the plaintiff's expenditure, providing equitable relief for the plaintiff's loss.

Orders