Collum v Opie - [2000] SASC 107

COLLUM v OPIE
[2000] SASC 107
Full Court: Lander, Williams and Gray JJ
1      LANDER J.      I have had the advantage of reading in draft the reasons for decision of Gray J. I agree with his Honour’s conclusions and desire to add only a few words.
2      The appellant, who was the defendant in the Court below, was found liable to the plaintiffs for misrepresentations made by her husband/agent and thereby for breach of contract.
3      In particular the Trial Judge found that the defendant was in breach of contract for failing to obtain approval from the plaintiffs for the variation of a proposed development on the defendant’s property.
4      The Trial Judge adjourned the plaintiff’s claim for damages for further consideration but in the meantime made orders in the nature of injunctions requiring the defendant to remove a wall which had been constructed on the boundary between the defendant’s land and the plaintiff’s land to a height of 3.8m and restraining the defendant or her agents from constructing part of a proposed building at the Eastern end of the defendant’s land.
5      The defendant does not complain, on appeal, of the finding that she was liable to the plaintiffs for breach of contract. Nor does she complain of the determination that she is liable in damages for breach of contract or the order adjourning the assessment of damages.
6      She does not dispute that in the circumstances of this case it was appropriate to grant some form of injunction and indeed does not complain about that part of the injunction which prevents her from erecting the two storey section on the Eastern end of her premises.
7      She limits her complaint on this appeal to that part of the order which requires her to remove the Southern wall to the height of 3.8 metres.
8      The defendant claims that that order should not have been made because of the plaintiffs’ delay in enforcing their rights against the defendant.
9      The contract provided that, if the defendant constructed the proposed development referred to in the contract, which was to be a two storey dwelling on the defendant’s land, the defendant agreed that the aspect and position of the Southern side of the proposed development would not vary significantly from those depicted in the house plan as provided to the plaintiffs “unless the (defendant) first obtains the (plaintiffs) approval for such variations and the (plaintiffs) must not withhold such approval unless the (plaintiffs) reasonably determines (sic) that the variation affects the (plaintiffs) enjoyment of the land”.
10     The Trial Judge determined that the defendant decided to construct the proposed development otherwise than in accordance with the plan provided to the plaintiffs and carried out a partial construction of the development otherwise than in accordance with that plan.
11     When the plaintiffs became aware that the Southern aspect was to be higher than provided for in the plan they sought and obtained legal advice and gave notice to the defendant objecting to…

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 Collum v Opie

Details

AGLC: Collum v Opie [2000] SASC 107
Case: [2000] SASC 107
Decision Date: 7 July 2000

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal brought by Ms Collum against a judgment that found her liable to Mr and Mrs Opie for breach of contract. The breach arose from the construction of a southern wall higher than agreed in a contract for the sale of a property and the building of a two storey section at the eastern end of the property. The trial judge had made orders for an injunction requiring the removal of part of the southern wall and restraining the building of the two storey section. Ms Collum appealed against the order to remove part of the southern wall on the basis that the plaintiffs had delayed in enforcing their rights against her. The Court was satisfied that the trial judge had correctly found that the plaintiffs had not delayed unreasonably in enforcing their rights against Ms Collum. The Court was also satisfied that the trial judge had correctly rejected the defence of laches and had properly exercised his discretion in ordering the removal of part of the southern wall. The appeal was dismissed.

Orders