Coghlan v Pyoanee Pty Ltd

[2003] QCA 146

SUPREME COURT OF QUEENSLAND

CITATION:

Coghlan v Pyoanee P/L [2003] QCA 146

PARTIES:

PETER CHARLES COGHLAN
(plaintiff/appellant)
v
PYOANEE PTY LTD ACN 003 671 109

(defendant/respondent)

FILE NO/S:

Appeal No 29 of 2003
SC No 6498 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2003

JUDGES:

McPherson and Williams JJA, and Atkinson J
Separate reasons for judgment of each member of the Court,
Each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – INTERPRETATION – OTHER MATTERS – whether subsequent agreement later found to be void for uncertainty rescinded or varied the earlier contract - whether agreement was “entirely inconsistent” with earlier contract – whether agreement disclosed the intent of parties to rescind original agreement – whether an ineffective attempt to alter contract should receive effect

TRADE AND COMMERCE – CONSUMER PROTECTION – MISLEADING CONDUCT – CHARACTER AND ATTRIBUTES OF CONDUCT – AS TO CONTRCTS - purchaser/borrower’s failure to disclose that he was undeclared bankrupt - whether a duty to disclose exits - where plaintiff made an active misrepresentation on an unrelated issue – whether representation after contract is formed is relevant

Sale of Goods Act 1893 (Qld), s 17

British & Benningtons v North West Cachar Tea Co [1923] AC 48, applied
Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520, applied
Dewhirst v Edwards [1983] 1 NSWLR 34, considered
Dyster v Randall & Sons [1926] 1 Ch 932, applied
Johnstone v Veitch [1957] QWN 18, referred to
Knight Sugar Coy Ltd v Alberta Railway & Irrigation Co [1938] 1 All ER 266, referred to
Meehan v Jones (1982) 149 CLR 571, considered
Mehmet v Benson (1965) 113 CLR 295, referred to
Morris v Baron & Co [1918] AC 1, applied
Sang Lee Investment Co Ltd v Wing Kwai Investment Co Ltd [1983] HKLR 197, referred to
Tallerman & Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd (1957) 98 CLR 93, followed
United Dominions Corporation (Jamaica) Ltd v Shoucair [1969] 1 AC 340, followed

COUNSEL:

D R Cooper SC, with C L Francis, for the appellant

S Couper QC for the respondent

SOLICITORS:

Porter Davies Solicitors for the appellant
Colin Biggers & Paisley for the respondent

1. McPHERSON JA:  The plaintiff Peter Coghlan, who is the appellant in this Court, agreed to sell to the respondent defendant Pyoanee Pty Ltd, of which a Mr Jamieson is the principal, his land and house at 38 Wolseley Road, Point Piper in Sydney for a price of $6,850,000. The contract ex 1, which is dated 5 September 2001 (“the September contract”), was prepared by solicitors in New South Wales and was concluded by an exchange of counterparts. It is in the printed form (2000 edition) sponsored by the Law Society of New South Wales and the Real…