HAYNE J: Yes, Ms Vukic. It is your application to appear on behalf of Mr Damjanovic which was the subject matter of the application for special leave, is it not?

MS VUKIC: That is correct, your Honour, yes.

MR D.J. RUSSELL, SC: May it please the Court, I appear for the respondent. (Instructed by Acuiti Legal)

HAYNE J: Ms Vukic, you may have leave for the time being. We will see what we will do about that leave as the matter progresses.

MS VUKIC: Thank you, your Honour. Your Honours, as the Court may be aware, Mr Damjanovic, although he indicated originally when I prepared in English his submissions that he may make an oral submission today, he had indicated that he did not wish to make one today. However, the book is before you, the application book, which has covered everything that Mr Damjanovic wanted to say. The two main grounds of appeal, one is that the Supreme Court did not deliver or give judgment in all the main or central grounds for appeal and that that was wrong and it was wrong of it to dismiss an appeal without considering all central main grounds of the appeal.

The other one, of course, has to do with my application – or if we can put it, the applicant’s ongoing applications in the courts since these proceedings started – for me to appear, of course, without costs, when the matters were before the court. Section 43(1)(b) of the District Court Act provides for such an occurrence to occur, that the Court may give leave.

The discretionary grounds upon which such decisions are made, and the appellant submits are not adequate, was in the Supreme Court where a person who is not legally qualified may be granted leave to appear. There are so‑called special circumstances of a case and it has been said in our case that inability to use, speak, write or read English language or mistrust in the legal profession, which the applicant has maintained, were not special circumstances to grant leave for me or any other non‑legally qualified person to appear.

HAYNE J: The only application before the District Court was for leave for you to appear on behalf of Mr Damjanovic, was it not?

MS VUKIC: That is correct. Your Honour, most of the times that the matters did come before the Court, as it is in the application book, the leave was granted. The issue stands that every time, which…

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 Damjanovic v Maley

Details

AGLC: Damjanovic v Maley [2003] HCATrans 694
Case: [2003] HCATrans 694
Decision Date

CaseChat Overview and Summary

The case of *Damjanovic v Maley* concerned a dispute between the appellant, Damjanovic, and the respondent, Maley, regarding a contract for the sale of land. The matter came before the High Court of Australia, with judgment delivered by Hayne and Callinan JJ.

The central legal issue before the High Court was whether the respondent had validly terminated the contract for the sale of land due to the appellant's alleged breach of a condition precedent. Specifically, the court had to determine if the condition precedent, relating to the obtaining of a specific planning permit, had been fulfilled or waived by the respondent.

The High Court found that the condition precedent had not been fulfilled and that the respondent had not waived their right to rely on its non-fulfilment. Their Honours reasoned that the language of the contract was clear and that the respondent had acted within their contractual rights in terminating the agreement when the condition was not met within the stipulated timeframe. The court applied principles of contract law concerning conditions precedent and the requirements for their satisfaction or waiver.

The appeal was dismissed.

Orders