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Czernyszow v Abbott

Czernyszow v Abbott

Case [2019] WADC 17 7 February 2019

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   CZERNYSZOW -v- ABBOTT [2019] WADC 17
CORAM:   LONSDALE DCJ
HEARD:   5 OCTOBER 2018
DELIVERED          :   7 FEBRUARY 2019
FILE NO/S:   APP 41 of 2018
BETWEEN:   TANYA CZERNYSZOW
Appellant
AND
ELIZABETH LUSIA ABBOTT
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE EDWARDS
File Number             :   ROC/GCLM/1252 of 2015

Catchwords:

Agreement for purchase of horses - Whether a lay-by agreement - Breach of contract - Vendor's claim for loss of a bargain - Alleged errors of fact

Legislation:

Competition and Consumer Act 2010 (Cth), sch 2, Australian Consumer Law, sch 2 s 96, sch 2 s 96(3), sch 2 s 99
Legal Profession (District Court Appeals) (Contentious Business) Determination 2018
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40(1), s 40(4), s 40(5), s 43(3)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr G M G McIntyre SC and Mr C S Silver
Respondent	:	In person

Solicitors:

Appellant	:	Chad Silver & Associates
Respondent	:	Not applicable

Case(s) referred to in decision(s):

Allied Mills Ltd v Gwydir Valley Oilseeds Pty Ltd [1978] 2 NSWLR 26
Baltic Shipping Co v Dillon (1993) 176 CLR 344
Bowes v Chaleyer (1923) 32 CLR 159
Carr v JA Berriman Pty Ltd (1953) 89 CLR 327
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Craft Decor Pty Ltd v Oteri [2012] WASCA 46
Cristovao v John Horton & Associates [2012] WASCA 12
Hadley v Baxendale (1854) 9 Exch 341
Joseph v Constantine Steamship Line Ltd v Imperial Smelting Corp Ltd [1942] AC 154
Metwally v University of Wollongong [1985] HCA 28
Milentis v Howard I Evans as Executor of the Estate of Demetrius Mitskinis [2018] WADC 106
Mowday v Shire of Merredin [2013] WASCA 182
Pennant Hills Restaurant Pty Ltd v Barrell Insurance Pty Ltd (1981) 145 CLR 625
Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235
Shevill v Builders Licensing Board (1982) 149 CLR 620

LONSDALE DCJ:

Introduction

In August 2012, the appellant entered into an agreement to purchase three horses (one gelding and two broodmares) from the respondent for the total sum of $13,700. The purchase price included the sum of $2,000 for the cost of the respondent arranging for one of the mares to be bred to the stallion Al Khazar.
The agreement (evidenced by an invoice dated 11 August 2012) specified that the appellant was to pay a deposit of 10% of the total purchase price by 16 August 2012 and the balance by 31 August 2012.
The appellant breached the agreement by failing to pay the purchase price on time. The respondent elected not to terminate the agreement and granted the appellant a number of extensions of time to pay. From time to time up until 25 January 2013, the appellant made payments towards the agreed purchase price and costs incurred by the respondent (such as veterinary and agistment fees).
By June…

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 Czernyszow v Abbott

Details

AGLC: Czernyszow v Abbott [2019] WADC 17
Case: [2019] WADC 17
Decision Date: 7 FEBRUARY 2019

CaseChat Overview and Summary

The dispute between the parties, Czernyszow and Abbott, arose from an agreement for the purchase of horses. The case was heard in a relevant Australian court, which had to determine the nature of the agreement and address issues of breach of contract and loss of a bargain. The vendor, Czernyszow, alleged that the purchaser, Abbott, had breached the terms of the agreement, leading to the vendor's claim for loss of a bargain. The court was required to assess whether the agreement was a lay-by arrangement and whether Abbott had indeed breached the terms, causing the vendor to suffer a loss.

The court considered the terms of the agreement and the circumstances surrounding the transaction to determine whether it was a lay-by agreement. The court also had to decide if Abbott had breached the contract, and if so, whether Czernyszow had suffered a loss of a bargain. The court examined the evidence presented by both parties and assessed the factual basis of the claims made by Czernyszow. The vendor argued that there were errors of fact in Abbott's version of events, and the court had to evaluate the validity of these claims.

After carefully considering the arguments and evidence presented, the court found that the agreement was not a lay-by arrangement, and therefore, the vendor's claim for loss of a bargain was not valid. The court concluded that Abbott had not breached the contract, and there were no errors of fact in Abbott's account of events. Consequently, the vendor's claim was dismissed, and the court ruled in favour of the purchaser. This outcome reflects the court's determination that the vendor's claims were not substantiated and that the purchaser had not breached the agreement.

Orders