Daniels by his Next Friend the Public Trustee v Daniels

[2007] WADC 118

DANIELS by his Next Friend THE PUBLIC TRUSTEE -v- DANIELS [2007] WADC 118

Link to Appeal :

[2008] WASCA 230

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 118
Case No:	CIV:401/2004	Heard:	5 JULY 2007
Coram:	COMMISSIONER STEVENSON	Delivered:	6/07/07
Location:	PERTH
No of pages:	14	Judgment Part:	1 of 1
Result:	Judgment for the plaintiff
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Parties:	ARNOLD EDWARD DANIELS by his Next Friend THE PUBLIC TRUSTEE ROBERT GRAEME DANIELS
Catchwords:	Contracts Construction Proper construction of contract for sale of land Related parties Whether payment made Interest
Legislation:	Supreme Court Act 1935, s 32
Case References:	Mackenzie v Albany Finance Ltd [2003] WASCA 301 Muirhead v Commonwealth Bank of Australia [1997] 1 QD R 567 Nearhaze v The Official Trustee [1999] NSWSC 959 Pateman& Anor v Daw Koh & Anor [2007] WASCA 85 Young v Queensland Trustees Ltd (1956) 99 CLR 560

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : DANIELS by his Next Friend THE PUBLIC TRUSTEE -v- DANIELS [2007] WADC 118 CORAM : COMMISSIONER STEVENSON HEARD : 5 JULY 2007 DELIVERED : Delivered Extemporaneously on 6 JULY 2007 typed from tape and edited by Trial Commissioner FILE NO/S : CIV 401 of 2004 BETWEEN : ARNOLD EDWARD DANIELS by his Next Friend THE PUBLIC TRUSTEE

Plaintiff

AND

ROBERT GRAEME DANIELS
Defendant

Catchwords:

Contracts - Construction - Proper construction of contract for sale of land - Related parties - Whether payment made - Interest

Legislation:

Supreme Court Act 1935, s 32

Result:

Judgment for the plaintiff

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Representation:

Counsel:

Plaintiff : Mr B W Ashdown
Defendant : Mr J Birman

Solicitors:

Plaintiff : Public Trustee
Defendant : Birman & Ride

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

Mackenzie v Albany Finance Ltd [2003] WASCA 301
Muirhead v Commonwealth Bank of Australia [1997] 1 QD R 567
Nearhaze v The Official Trustee [1999] NSWSC 959
Pateman & Anor v Daw Koh & Anor [2007] WASCA 85
Young v Queensland Trustees Ltd (1956) 99 CLR 560

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COMMISSIONER STEVENSON:

Introduction

1 By this action the parties require the court to decide the proper interpretation of Condition 5 of a contract for the sale of land made between the plaintiff as vendor and the defendant as purchaser. I will refer to the contract as the "Sale Contract".

2 In addition to determining the proper construction of Condition 5 of the Sale Contract the court is also required to decide two questions of fact. First, did the parties execute the Sale Contract on 15 September 1997 (which is the defendant's contention) or did they execute the contract on the date that the Sale Contract bears, namely 25 February 1998 (which is the plaintiff's contention). Secondly, did the defendant pay the $1000 deposit referred to in the Sale Contract on 15 September 1997 or at all.

The background facts

3 The plaintiff is the father of the defendant. At all material times prior to 19 June 1998 the plaintiff was the registered proprietor of Oldfield Locations 21, 37 and 38 ("the Land"). On 19 June 1998 the Land was transferred to the defendant by the plaintiff pursuant to the Sale Contract.

4 Prior to this the defendant was engaged in a farming partnership with his parents for about 20 years, and before that he had worked on the farm for about 10 years. The Land was part of several locations owned by the plaintiff in the district and upon which the farming business was conducted.

5 It is common ground that by a Lease Agreement dated 11September 1997 the plaintiff leased the land to the defendant ("the Lease Agreement").

6 The material terms of the Lease Agreement for present purposes are:

(1) The commencement date was 1 September 1997 (cl 1).

(2) The term of the lease was 18 months expiring on 30 April 1999 and thereafter at the defendant's option, on a yearly basis for the life of the defendant (cl 4).

(3) The rent was $20,000 per annum payable monthly in advance, that is, $1667 per month (cl 5).

(Page 4)

(4) The plaintiff granted the defendant a right of first refusal to purchase the land for a price to be negotiated between the parties (cl 15).

(5) In the event of default by the defendant of payment of any monies due under the lease, interest was to be paid by the defendant at the rate of 12 per cent per annum (cl 14).

7 The Sale Contract provided that the purchase price payable by the defendant for the Land was $300,000. This included payment of a deposit of $1000 in respect of which the Sale Contract recorded payment "is paid herewith". The specified settlement date was 31 March 1998. The Sale Contract was signed by the plaintiff and the defendant and their signatures were witnessed by Mr Richard K Thomas, a solicitor who prepared the Sale Contract. Settlement occurred on 19 June 1998, the date on which the Land was transferred to the defendant.

8 The material terms of the Sale Contract for present purposes are:

"4. The Vendor agrees to accept the sum of FIFTY THOUSAND DOLLARS on the 1st day of March 1998 less any deposit paid on signing this Contract and the balance of money by annual payments of FIFTY THOUSAND DOLLARS on the 1st day of March 1999, 2000, 2001, 2002 and 2003 free of interest BUT it is agreed that the Purchaser can discharge the outstanding balance of money at any time prior to the 1st day of March 2003 should funds become available.

5. The Purchaser undertakes to continue the rental payments under the Lease Agreement until the total purchase price has been paid under this Contract."

9 Paragraph 6 of the plaintiff's statement of claim pleads that the defendant failed or neglected to make payment of the sum of $21,000 being the difference between the admitted $279,000 paid by the defendant to the plaintiff in consideration of the purchase price of $300,000. The admitted payments made by the defendant are $49,000 on 9 April 1998, $30,000 on 1 June 1999, $50,000 on 27 April 2000, $50,000 on 27 April 2001, $100,000 on 10 December 2002 being a total of $279,000.

10 Paragraph 6 of the defendant's defence dated 5 July 2007 pleads that in addition to the sum of $279,000 the defendant paid to Richard Thomas, the plaintiff's agent and solicitor, on 15 September 1997 the sum of $1000 being the deposit payable pursuant to the Sale Contract. This allegation is

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disputed by the plaintiff. The defendant does not and never has pleaded as a material fact that the Sale Contract was executed on 15 September 1997.

11 On 3 September 2004 the plaintiff obtained summary judgment against the defendant for $20,000 of the purchase price which, on the defendant's defence as it then stood, was admitted as being due and payable. At that time the defendant sought to set off and counterclaim this amount from the plaintiff on the basis that he had paid certain sums on behalf of the plaintiff. In any event summary judgment was entered by the learned Deputy Registrar for the sum of $20,000. At the same time the defendant obtained an order staying enforcement of the judgment until further order of the court. In the course of submissions I was informed that the judgment of $20,000 is still outstanding. In the context of allowing the defendant to amend his defence at the commencement of the trial I made an order lifting the stay of execution upon the judgment and the orders of the learned Deputy Registrar made on 3 September 2004 and 15 November 2004.

12 Subject to the proper interpretation of Condition 5 of the Sale Contract, counsel for the defendant accepted in submissions that the sum of $20,000 was part of the purchase price, and was still outstanding and had not therefore been paid by the defendant. I observe that it would have been open to the defendant to have paid the judgment amount of $20,000 at any time. I was not informed of the reason for the stay of execution being granted.

13 Paragraph 7 of the plaintiff's statement of claim pleads that the defendant has failed or neglected to pay to the plaintiff the sum of $98,353 which was the calculated amount due at the time the proceedings were commenced on 24 February 2004, based on the plaintiff's construction of Condition 5. The defendant denies any liability to pay this amount but does admit that he did not pay the sum of $1667 which was due on 1 April 1999 and that he has not paid the sum of $20,000 in respect of which judgment was obtained. It follows that the only amount of the purchase price of $300,000 which is still in dispute is $1000. The question therefore is whether the defendant paid the $1000 deposit.

Mr Robert Daniels

14 Mr Daniels, the defendant, gave evidence of the relevant circumstances to the best of his recollection. He admitted it was difficult to recall precisely the events as they occurred over 10 years ago. Mr Daniels' recollection was that he thought he had paid the $1000

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deposit to Mr Thomas when he saw Mr Thomas on 15 September 1997 in the company of his father. Mr Daniels recorded in his diary at the time that:

"Dad and I went down and saw the Solicitor and signed up the papers for the blocks then went and saw Peter at the bank. We opened a new account for Dad and then had lunch. …"

15 I accept and find accordingly that Mr Daniels made his diary entry on the evening of 15 September 1997 or the next day in accordance with his usual practice. Mr Daniels gave evidence to the effect that Mr Thomas asked him at the time of signing the Sale Contract to pay the deposit to which he responded that he didn't "have much" but was told "A thousand dollars will do". On this basis, according to Mr Daniels he started writing a cheque and in the course of doing this Mr Thomas allegedly also said that he would require money for a caveat and so instead of writing two cheques he wrote one cheque for the sum of $1106. This much is confirmed by the defendant's cheque butt which records cheque 300034 was made out in favour of Mr Thomas on 15 September 1997 for $1106. I accept that Mr Daniels provided a cheque for this amount to Mr Thomas on 15 September 1997.

16 Mr Daniels gave evidence about his subsequent enquiries to identify the purpose of the payment including communications he had with his accountant to clarify the position. In this regard Mr Daniels' evidence was that if he was asked by his father to pay something he just did it. I accept the relationship between the parties was of this nature. In cross-examination Mr Daniels said again that he signed whatever he was asked to by his father. When it was put to him in cross-examination in response to his evidence that he thought he had signed the Sale Contract on 15 September 1997 he was unable to say whether the contract was in fact dated at that time. Mr Daniels, to his credit, in cross-examination accepted that it was not correct to say that Mr Thomas was just his father's solicitor. He agreed that Mr Thomas acted for him as well as his father in relation to their various personal and business affairs. In cross-examination, Mr Daniels was presented with the account of Mr Thomas of the relevant events and again, quite properly, to his credit Mr Daniels conceded that he must have received the solicitor's communication which appears to have been faxed to him on 9 September 1998, although he could not recall having received the letter.

17 In my opinion Mr Daniels did the best he could in the circumstances to accurately recall the events of his attendance on Mr Thomas on

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15 September 1997 with his father. The purpose of his evidence was to prove the contention that the Sale Contract was in fact signed by the parties on 15 September 1997 and not on 25 February 1998, the date that it bears. I find that Mr Daniels did not have a complete recollection of the events of 15 September 1997, but has with the aid of his diary and cheque book attempted to reconstruct what occurred.

18 Other evidence produced in the course of the hearing indicates that the defendant obtained the transfer of Oldfield Location 619 from the plaintiff on 18 August 1997 (Exhibit 2). The evidence also disclosed that the defendant received various invoices from Mr Thomas in respect of legal costs dated 21 August 1997 in respect of the Lease Agreement for the Land, and a second invoice also dated 21 August 1997 in respect of the Lease Agreement and transfer of Oldfield Location 619 (Exhibit 3). Mr Thomas' invoice dated 10 September 1998 is in respect of the preparation of a caveat concerning the Land and again there is a second invoice to the plaintiff of the same date in this respect. Finally, there is an invoice dated 9 October 1998 from Mr Thomas to the plaintiff for lodging a caveat on the title for the Land.

19 Exhibit 5 is the defendant's bank statement for the relevant time and it records that on 17 September 1997 the defendant's cheque 300034 was processed. I note the evidence is that the handwriting on Exhibit 5, the defendant's bank statement, is according to the defendant that of his accountant and there is a notation against the debit entry of $1106 "block and caveat". In addition, the defendant's own cheque and deposit listing form for 1997 prepared by the defendant was produced (Exhibit 6). This records in respect of the cheque that on 15 September 1997 the defendant paid "Richard Thomas deposit on block and caveat". The recorded amount is $1100 but the defendant explained that he had presumably misread his own writing on the cheque butt. The reference to the block in each case was in the singular.

Findings on the evidentiary issues

20 The defendant accepts that he bears the onus of proving the payment of the deposit of $1000 which he contends was paid on 15 September 1997. I agree that the onus of proof is on the defendant in these circumstances: Young v Queensland Trustees Ltd (1956) 99 CLR 560 at 562 – 570; Nearhaze v The Official Trustee [1999] NSWSC 959 at [20]; Muirhead v Commonwealth Bank of Australia [1997] 1 QD R 567 at 577; Mackenzie v Albany Finance Ltd [2003] WASCA 301 at [9] per E M Heenan J (Malcolm CJ and Le Miere J agreeing).

(Page 8)

21 I am not persuaded, and I find accordingly, that the defendant in fact paid the deposit of $1000 for the Sale Contract on the occasion of his visit to Mr Thomas with his father on 15 September 1997. I am also not persuaded that the defendant and the plaintiff and Mr Thomas (as witness) executed the Sale Contract on 15 September 1997. In my opinion it is more likely that the Sale Contract was executed by the parties and witnessed by Mr Thomas on the date that the Sale Contract bears, namely 28 February 1998. In my opinion it is more probable than not that the defendant has confused the purpose of the payment of $1106 on 15 September 1997 with monies due to Mr Thomas in respect of other dealings including possibly Oldfield Location 619.

22 It may also have been a payment in respect of the plaintiff's affairs as it appears from the defendant's own records that he made various payments in 1997 for the benefit of his parents. I also note that the Lease Agreement itself, containing the right of first refusal, was only signed by the parties on 11 September 1997. In my opinion, the parties having just entered into this agreement, are unlikely only a few days later to have entered into the Sale Contract.

The parties' submissions on the proper interpretation of Condition 5

23 As mentioned the primary issue between the parties is the proper interpretation of Condition 5 of the Sale Contract.

24 The plaintiff contends that Condition 5 on its proper construction means what it says literally, namely that the defendant agreed to continue to make payments of $1667 to the plaintiff until the total purchase price of $300,000 had been paid under the Sale Contract. If this construction is right then in view of my finding that the defendant has not paid the $1000 deposit then the purchase price is still outstanding and the defendant is liable to pay the monthly payments of $1667 until the whole purchase price of $300,000 has been paid in full. The outcome is the same in any event because of the defendant's admission that he has not yet paid the summary judgment amount of $20,000, which is admitted to be still due and payable as part of the purchase price. For this reason the position with respect to the payment or non-payment of the $1000 deposit by the defendant is not determinative on its own of the outcome of this trial.

25 The defendant's submission is that on its proper construction Condition 5 provides that the defendant will "from settlement until the lease expiry date, in addition to the purchase price, … pay the amounts equal to the monthly rental payments provided for in the lease on the dates upon which they would have been due". In short, the defendant's

(Page 9)

contention is that the obligation to pay the monthly amounts of $1667 finished on the expiry of the Lease Agreement, namely 30 April 1999. Even on the defendant's own construction he admits he has not paid the sum of $1667 which was the amount due on 1 April 1999.

The proper approach to construction

26 The general principles which apply to the construction of written contracts are conveniently set out in the judgment of Buss JA in the recent decision of Pateman & Anor v Daw Koh & Anor [2007] WASCA 85 at [33] and [34] where his Honour said:

"The general principles to be applied in the construction of written contracts are set out in the judgment of Gibbs J in Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109 - 110:

'It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, "even though the construction adopted is not the most obvious, or the most grammatically accurate", to use the words from earlier authority cited in Locke v. Dunlop ((1888) 39 Ch. D. 387, at p. 393), which, although spoken in relation to a will, are applicable to the construction of written instruments generally; see also Bottomley's Case ((1880) 16 Ch. D. 681, at p. 686). Further, it will be permissible to depart from the

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ordinary meaning of the words of one provision so far as is necessary to avoid an inconsistency between that provision and the rest of the instrument. Finally, the statement of Lord Wright in Hillas & Co. Ltd. v. Arcos Ltd ((1932) 147 L.T. 503, at p. 514), that the court should construe commercial contracts "fairly and broadly, without being too astute or subtle in finding defects", should not, in my opinion, be understood as limited to documents drawn by businessmen for themselves and without legal assistance (cf. Upper Hunter County District Council v. Australian Chilling and Freezing Co. Ltd ((1968) 118 C.L.R. 429, at p. 437)).'

The construction of a written contract is concerned with ascertaining what a reasonable person would have understood the parties to mean. Consideration should ordinarily be given not only to the language of the document, but also to the surrounding circumstances known to the parties, and the apparent purpose and object of the transaction. See Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, where Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said, at 179 [40]:

'This Court, in Pacific Carriers Ltd v BNP Paribas ((2004) 218 CLR 451), has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction (Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461 - 462 [22]).'

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Also see Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181 at 188 [11]; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461 - 462 [22]; Jumbo King Ltd v Faithful Properties Ltd [1999] 3 HKLRD 757 at 773 - 774."

The proper construction of Condition 5

27 In my opinion Condition 5 properly construed contains an obligation on the part of the defendant to continue to make "additional" payments in addition to the purchase price to the plaintiff. This much is not disputed by the defendant. Nor is the amount of those payments on the basis that they are defined by reference to the "rental payments" which by reference to the Lease Agreement is the sum of $1667 payable monthly in advance. The difference between the parties is whether the obligation ceases on the expiry of the term of the Lease Agreement or whether it continues until the total purchase price provided for by the Sale Contract, namely $300,000, has been paid by the defendant to the plaintiff.

28 The defendant relies on the fact that Condition 4 makes no express reference to the payment of interest and stresses the father/son relationship between the parties. Against this of course must be put the fact that the Lease Agreement did contain a provision for the payment of interest at the rate of 12 per cent per annum by the defendant in the event of any default by him in making the rental payments to the plaintiff. Also the Joint Form of General Conditions for the Sale of Land which forms part of the Sale Contract contains default provisions which were not excluded from operating.

29 However, and importantly in my opinion, the defendant's construction does not have regard to the fact that Condition 4 of the Sale Contract provided a schedule of payments, the last payment being due on 1 March 2003, being obviously after the stated expiry date of Lease Agreement, namely 30 April 1997. On this basis, without expressly making it plain, in circumstances where title has been transferred, there would be no incentive for the defendant to pay the full purchase price. In this sense the fact that Condition 5 follows Condition 4 makes the context important.

30 The plaintiff submits that its interpretation of Condition 5 is not onerous because it was open to the defendant to pay the full purchase price at any time even before the stated dates for payment of the instalments, thereby terminating the obligation to make the "additional payments".

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31 Counsel for the defendant referred the court to the way the learned Deputy Registrar had put the defendant's interpretation when giving his reasons for decision on the summary judgment application. He said:

"Counsel has drawn my attention to an earlier term of the sale agreement which refers to the fact that the balance of the purchase price is to be interest-free and has suggested that the terms of paragraph 5 and the interpretation he advances are explicable in terms of the fact that the entitlement to interest has not been pursued by the vendor. On the other hand, an equally likely explanation is the fact that the vendor and purchaser were father and son and that the father did not wish to impose an onerous term upon the son."

32 At the same time it must be remembered that the learned Deputy Registrar considered the plaintiff's interpretation was "certainly a plausible interpretation".

33 As mentioned, in my opinion, the language of the contract is clear and unambiguous. It is only when regard is had to the relationship between the parties and one tries to put this against the literal and plain meaning of the language that any doubt can be seen to be created. Even then there is not sufficient doubt to create any proper ambiguity.

34 The defendant accepts that the purchase of the freehold of the Land did not merge the Lease Agreement obligation to make the monthly payments to the plaintiff and that this obligation to make what was described as "additional payments" to the purchase price was ongoing. As mentioned the issue is when the obligation ceased. Condition 5 plainly says that the obligation to make the monthly payments of $1667 continues "until the total purchase price has been paid". To contend that the obligation to make the payments ceased on the expiry of the lease period would mean that this part of Condition 5 was otiose.

35 For these reasons, in my opinion, the construction of Condition 5 of the Sale Contract as contended for by the plaintiff is the proper construction which must be applied, and was objectively the intention of the parties at the relevant time. It follows because the defendant on his own admission has not paid the "total purchase price" payable under the Sale Contract that he is liable to pay to the plaintiff continuing amounts of $1667 per month from 1 April 1999 being the date up to which the payments were made.

(Page 13)

The plaintiff's claim for interest

36 After I gave these reasons for decision extemporaneously counsel for the plaintiff moved for judgment and interest on the outstanding monies due at the rate of 15 per cent per annum on the basis that the defendant admitted par 5(d) of the statement of claim which pleaded that it was a term of the Sale Contract that the defendant would pay the plaintiff interest on any outstanding sums at the rate of 15 per cent per annum. This was correct but counsel for the defendant said this was an error and sought leave to amend the defendant's defence to withdraw the admission. After hearing argument I gave the defendant leave to amend his defence to correct the error. Since then both parties have provided short written submissions on the issue of the award of interest.

37 The defendant submits that the General Conditions (Exhibit 1, page 24) properly construed, and in particular GC 5(1), do not have, when regard is had to the Sale Contract, any relevant application to the determination of the amount of interest that might be payable on the outstanding purchase price. The defendant says the "Settlement Date" was 31 March 1998 and "Settlement" is not defined by the Sale Contract.

38 Instead, the defendant says that at best, and only then subject to the court's discretion, the plaintiff is entitled to interest at the statutory rate of 6 per cent pursuant to s 32 of the Supreme Court Act1935. I reject the defendant's submission that any award of interest would be tantamount to ordering interest to be paid on interest, by reason of the court's reasoning. The proper question is what did the Sale Contract provide for in respect the payment of interest, if any, on the purchase price?

39 The final submission of the defendant is that the court should not exercise its discretion to award interest under s 32 because in view of the party's relationship and the obligation to pay the monthly amounts until the $21,000 outstanding purchase price is paid, it would be unjust, inequitable and inappropriate to make any award.

40 The plaintiff maintains its submission that it is entitled to interest on the monies due at the rate of 15per cent per annum by reason of the General Conditions which form part of the Contract of Sale. It is common ground that the General Conditions provide that the prescribed rate of interest is 15 per cent per annum (cl 24(1)). The plaintiff relies on cl 4(4), cl 5(1) and cl 15(8) of the General Conditions for its claim. In my view the difficulty is that the General Conditions do not expressly deal with the circumstances provided for by the express terms of the Sale Contract itself, particularly where settlement has occurred prior to payment of the

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full amount of the purchase price. The term "settlement" although used in the General Conditions is not a defined term, and its meaning is to be gleaned by the context in which it is used and the definition of "Settlement Date". I am not persuaded that the construction contended for by the plaintiff is correct.

41 In considering the issue of whether the Sale Contract provided that the defendant would be obliged to pay interest on any unpaid purchase price monies it is necessary in my opinion to return to the express terms of the Sale Contract and in particular Conditions 4 and 5.

42 The annual payments of $50,000 are expressed by Condition 4 to be free of interest. Condition 5 which follows on immediately after Condition 4 then provides for the payment of $1667 per month until the total purchase price has been paid. In my opinion, the proper interpretation of these provisions is that the parties did not contemplate that the defendant would, in addition to the monthly payments while the purchase price was for any amount still unpaid, also pay interest, let alone at the rate of 15per cent per annum.

43 In my opinion the objective intention of the parties, according to the proper construction of the Sale Contract, was that no interest would be payable by the defendant on any unpaid purchase monies, only the fixed monthly amount of $1,667 which was payable until the total purchase price was paid.

Summary

44 I will hear the parties as to the correct amount of the judgment that the plaintiff is entitled to in view of the findings contained in these reasons for decision. It is not possible for the court to make the calculation, in part, because it is not known whether the defendant has paid the $21,000 which is the outstanding amount of the total purchase price due under the Sale Contract.