Clark v Macourt - [2013] HCATrans 112

[2013] HCATrans 112

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S9 of 2013

B e t w e e n -
ANNE CLARK
Applicant
and
DAVID MACOURT
Respondent
Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MAY 2013, AT 10.44 AM

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MR A.R.R. VINCENT and MS L.M. JACKSON, for the applicant. (instructed by Norton Rose Australia)

MR C.M. HARRIS, SC: If the Court pleases, I appear with my learned friend, MR H. ALTAN, for the respondent. (instructed by Redmond Hale Simpson)

HAYNE J: Yes, Mr Jackson.

MR JACKSON: Your Honours, this is a case where, in our submission, special leave should be granted for two reasons which are related. They are that the result has worked a significant injustice for the applicant; that is the first one. The second is that that has been achieved, in our submission, by the Court of Appeal taking a rather unusual view as to the principles applicable where defective goods – I use those terms for brevity – are sold as part of a larger transaction with an undifferentiated price, and in so doing the Court of Appeal has attributed to the applicant a claim for damages which he was not making and then has knocked it down, taking with it the judgment that she obtained.

Your Honours, I need to go to the circumstances a little to make those points and may I proceed to do so? Your Honours, at the heart of the reasoning of the Court of Appeal is the notion that this was a contract for the sale of a practice or business. Your Honours will see that at page 71, Justice Tobias, paragraph 49 and at the first half dozen lines, your Honours, and also the last few lines of that paragraph.

The point we would seek to make, your Honours, is that in reality this was a case where the transaction was for the sale of some assets of a business. That can be seen from the document of sale which is at page 149 in recital B, and at paragraph and clause 1a, and then the definition of “assets” at page 155, about line 23 or 24. One notes, your Honours, that it excludes, for example, plant and equipment, there is no inclusion of any rights to premises or anything of that kind, and then your Honours will see on page 156 the definition of “sperm”.

Your Honours, could I, whilst at that document, refer to the purchase price agreed upon which your Honours will see at clause 2a at page 149, about line 38 and, your Honours, the opening words of clause 2, “The purchase price for the assets”. Your Honours, the amount of the purchase price payable was calculated by reference to a percentage of…

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.

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Details

Case: [2013] HCATrans 112
Decision Date

CaseChat Overview and Summary

In *Clark v Macourt*, the High Court of Australia considered a dispute between a vendor and a purchaser concerning the sale of a property. The purchaser, Mr Macourt, sought to terminate the contract of sale on the grounds that the vendor, Ms Clark, had failed to provide a crucial document, a "certificate of occupancy," by the settlement date. The purchaser argued that this failure constituted a breach of a contractual term, entitling him to terminate the agreement and recover his deposit.

The central legal issue before the High Court was whether the vendor's failure to provide the certificate of occupancy by the settlement date amounted to a breach of a condition of the contract, thereby entitling the purchaser to terminate. This required the Court to determine the nature of the vendor's obligation to provide the certificate and whether time was of the essence in relation to that obligation.

The High Court held that the vendor's obligation to provide the certificate of occupancy was not a condition of the contract, nor was time of the essence for its provision. The Court reasoned that the contract did not expressly stipulate that the certificate must be provided by settlement, nor could such a stipulation be implied. While the certificate was a document that would ordinarily be provided, its absence at settlement did not render the contract fundamentally different from that which the parties intended. Consequently, the purchaser was not entitled to terminate the contract on this ground.

Orders