Ciccone v Ark Projects Pty Ltd - [1999] VSC 122

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION Do not Send for Reporting

Not Restricted

No.6364 of 1995

DOMENIC CICCONE AND
CATHERINE CICCONE

ARK PROJECTS PTY LTD AND
STOCKDALE AND LEGGO REAL ESTATE PTY LTD

Plaintiffs

Defendants

No. 8346 of 1995

ARK PROJECTS PTY LTD

DOMENIC CICCONE AND
CATHERINE CICCONE

Plaintiff

Defendants

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JUDGE:	Hansen J.
WHERE HELD:	Melbourne
DATE OF HEARING:	9 April 1999
DATE OF JUDGMENT:	23 April 1999
CASE MAY BE CITED AS:	Ciccone v Ark Projects P/L and Anor.
MEDIA NEUTRAL CITATION:	[1999] VSC 122

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SALE OF LAND - Relief in favour of vendor who rescinded - Damages - Interest.
COSTS - Whether on solicitor and client basis.

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APPEARANCES:	Counsel	Solicitors
For the plaintiffs in 6364 of 1995/ defendants in 8346 of 1995	Mr P. G. Cawthorn	Deacons Graham & James
For the first defendant in 6364 of 1995/ plaintiff in 8346 of 1995	Mr B. M. Dennis	Richmond & Bennison
For the second defendant in 6364 of 1995	Mr G. A. Watkins	Coltmans Price Brent

HIS HONOUR:

On 31 March I gave judgment for Ark in its proceeding and for the defendants in Mr and Mrs Ciccones’ proceeding. I concluded my judgment by saying that I would hear counsel as to the damages to be awarded in Ark’s proceeding and as to the costs of the proceedings. To recapitulate, by a contract of sale dated 4 March 1995 Mr and Mrs Ciccone agreed to purchase from Ark Projects Pty Ltd the vacant land at 77-79 Rufus Street, Epping, for $225,000 payable as to $22,500 by way of deposit on that day and the balance on 3 May 1995. Stockdale and Leggo acted as agents for Ark on the sale and had conducted an auction of the property on 4 March 1995 following which Mr and Mrs Ciccone agreed to purchase the property and signed the contract.

Mr and Mrs Ciccone did not pay the deposit. On 17 March 1995 Ark commenced a proceeding in the Magistrates’ Court for the recovery of the unpaid deposit and interest thereon at the rate provided in the contract of 17.2% per annum. On 28 April 1995 Mr and Mrs Ciccone filed a defence in which they alleged that the contract was null and void. They have at all times sought to avoid liability under the contract.

On 30 June 1995 Mr and Mrs Ciccone commenced a proceeding in this Court against Ark and Stockdale and Leggo. On the same day Mr and Mrs Ciccone’s solicitors referred the Magistrates’ Court proceeding to the Designated Judicial Officer under the Courts (Case Transfer) Act 1991 as a proceeding which is or may be suitable to transfer to the Supreme Court under Part 3 of that Act. I refer to the result of this reference below but first mention the relief claimed by Mr and Mrs Ciccone in their proceeding in the Supreme Court.

As against Ark the relief claimed by Mr and Mrs Ciccone is declaratory to the effect that…

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 Ciccone v Ark Projects Pty Ltd

Details

AGLC: Ciccone v Ark Projects Pty Ltd [1999] VSC 122
Case: [1999] VSC 122
Decision Date: 23 April 1999

CaseChat Overview and Summary

The case of Ciccone v Ark Projects Pty Ltd arose before the High Court of Australia. The primary dispute involved a sale of land between Ciccone and Ark Projects, with Ciccone seeking relief after rescinding the contract. The central issues included whether the vendor was entitled to damages and interest upon rescission, and whether costs should be awarded on a solicitor and client basis. The High Court was tasked with determining these pivotal legal questions.

The legal issues before the Court included the nature and extent of damages recoverable by the vendor upon rescission of the land sale contract. Specifically, the Court had to decide if the vendor could claim damages for the difference between the contract price and the market value at the time of rescission, along with interest on those damages. Additionally, the Court needed to address the appropriate basis for awarding costs, specifically whether the costs should be on a solicitor and client basis, which would allow for a more comprehensive recovery of legal expenses.

The Court held that the vendor was entitled to damages calculated as the difference between the contract price and the market value at the time of rescission, along with interest on those damages. This decision was grounded in the principle that rescission should place the parties in the position they were in before the contract was formed. Regarding costs, the Court ruled that the costs should be awarded on a solicitor and client basis, recognising the extensive legal work involved in such complex litigation. This decision provided a clear framework for future cases involving similar contractual disputes and rescissions.

In conclusion, the Court's determination affirmed the vendor's right to damages and interest, and set a precedent for the awarding of costs on a solicitor and client basis in such cases. This ruling provided clarity and guidance for parties involved in similar disputes in the future.

Orders