Davey v Ron Farris Real Estate Pty Ltd - [2000] WASCA 58

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: DAVEY -v- RON FARRIS REAL ESTATE PTY LTD & ANOR [2000] WASCA 58

CORAM: TEMPLEMAN J
McKECHNIE J

HEARD: 21 FEBRUARY 2000

DELIVERED : 21 FEBRUARY 2000

FILE NO/S: FUL 175 of 1999

BETWEEN: ALAN DAVEY
Appellant
AND
RON FARRIS REAL ESTATE PTY LTD
First Respondent
RONALD SYDNEY PRITCHARD FARRIS
Second Respondent

Catchwords:

Practice and procedure Western Australia - Striking out statement of claim on the grounds that it is an abuse of process - Appeal from the decision of a Master striking out the plaintiff's statement of claim - Whether the statement of claim represents an attempt to re-litigate a point already determined in related action

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     Mr M L Bennett
First Respondent           :     Mr G R Hancy
Second Respondent       :     Mr G R Hancy

Solicitors:

Appellant:     Bennett & Co
First Respondent           :     Phillips Fox
Second Respondent       :     Phillips Fox

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

Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404

Case(s) also cited:

Ashmore v British Coal Corporation [1990] 2 QB 338
Biala Pty Ltd v Mallina Holdings Ltd (1994) 13 WAR 11
Dey v Victorian Railways Commissioner (1949) 78 CLR 62
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Haines v Bendall (1991) 172 CLR 60
House of Spring Gardens Ltd v Waite [1991] 1 QB 241
Manser v Spry (1994) 181 CLR 428
Permanent Building Society (In Liq) v Wheeler (1994) 11 WAR 187
Re Dawson [1966] 2 NSWLR 211
Reichel v McGrath (1889) 14 App Cas 665
Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
State Bank of New South Wales Ltd v Stenhouse (1997) A Tort Rep 81-423
Webster v Lampard (1993) 177 CLR 598

TEMPLEMAN J : The appellant brought an action against two respondents, Mr Farris and a real estate company bearing his name. For the purposes of this appeal, I do not think it necessary to draw any distinction between the two respondents and I will refer to them both as "the respondent".
In the action, the appellant alleged negligence and breach of contract against the respondent in discharging his duties as an agent. The action arose from a contract of the sale of the appellant's property in Scarborough to a corporate purchaser. The contract was subject to two special conditions. One condition, which was in the standard form, gave the purchaser 28 days in which to find finance. The second condition, which was drawn specially for this situation, gave the purchaser 30 days in which to satisfy itself that the property could be used for its requirements. The parties have referred to this as the "Due diligence condition".
The appellant's complaint is that the respondent failed to advise him, after the time for obtaining finance had expired, that he, the appellant, could terminate the contract. However, on an application by the respondent to a Master, the statement of claim was…

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.

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Details

Case: [2000] WASCA 58
Decision Date: 21 FEBRUARY 2000

CaseChat Overview and Summary

The case of Davey v Ron Farris Real Estate Pty Ltd involves a dispute where the plaintiff, Davey, sought to challenge a decision made by a Master to strike out his statement of claim. The basis of the appeal was the contention that the Master's decision constituted an abuse of process. The Master had ruled that the plaintiff's action was an attempt to re-litigate an issue that had already been determined in a related action, specifically a case for specific performance brought by the plaintiff against the appellant. The Court of Appeal in Western Australia was tasked with reviewing the Master's decision.

The primary legal issue before the court was whether the Master's decision to strike out the plaintiff's statement of claim was justified, given that it was predicated on the principle of preventing an abuse of process. The court had to determine if the principles set out in Haines v Australian Broadcasting Corporation applied to the circumstances of this case, and whether these principles warranted the striking out of the statement of claim. The principles from Haines v Australian Broadcasting Corporation, which were accepted by both parties, include the requirement that the issue in question must have been determined in an earlier case, the issue must have been of importance to the final result, it must have been properly argued, and the decision must have been final and not subject to appeal.

The court found that the Master's decision to strike out the statement of claim was indeed justified. The court held that the Master correctly applied the principle of preventing an abuse of process, as outlined in Haines v Australian Broadcasting Corporation. The earlier case had determined that the time for compliance with certain conditions had been extended beyond the period when the purchaser waived their rights in relation to those conditions. This finding by the trial Judge was critical because it meant that the respondent could not be held negligent for not advising the appellant that the contract could be terminated while it was still in effect. Consequently, the subsequent action by the plaintiff was untenable. The court confirmed the Master's decision and made orders accordingly.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

TEMPLEMAN J KECHNIE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: TEMPLEMAN J, KECHNIE J

In striking out the appellant's action and making the other orders to which I have referred, the Master applied the principle enunciated by Hunt CJ, Chief Justice at common law, in Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 410 to 414. It is common ground between the parties today that that is an appropriate principle to apply in this situation. The elements which are to be extracted from Haines' case are these: first, the issue which is to be determined must have been determined in an earlier case in which the party propounding the issue was unsuccessful. Secondly, the issue must be one which was necessarily determined in the earlier case and one of importance to the final result. Thirdly, the issue must have been argued properly. Fourthly, the decision disposing of the issue in the earlier case must have been a final issue; that is, not subject to appeal. That consideration would not be relevant if, notwithstanding the absence of an appeal, it is clear that some earlier decision or binding authority has been overlooked which might have affected the result. Although those principles were set out by Hunt CJ, he concluded by saying that there could be no definitive statement of the circumstances which would inevitably lead to a finding of an abuse of process. The earlier case here was an action for specific performance brought by the purchaser against the appellant. That action arose out of the appellant's refusal to complete the contract. The action was tried by Wallwork J. The learned Master reviewed the judgment in that case and held that there had been a finding by the trial Judge that the time for compliance with both of the special conditions to which I have referred had been extended beyond the time at which the purchaser waived its rights in relation to them. It is accepted by Mr Bennett, who appears for the appellant before us, that if there was such a finding by the trial Judge, that would inevitably result in the subsequent action being untenable. That is because the respondent could not be held to be negligent for failing to advise the appellant that he could terminate the contract when the contract was still on foot. It is common ground that the time for satisfaction of the two special conditions was extended to 4 pm on 17 March 1997. There was an issue on the pleadings in the earlier action as to whether the time for satisfaction of those conditions had been extended to 18 March; that is, after the time at which the purchaser waived the conditions. Mr Bennett submits that although that issue arose on the pleadings, it was not the real issue at trial where the attention was focused only on the due diligence condition. Mr Bennett says it was that condition which was the hinge, as he put it, on which the contract turned because that was the crucial condition so far as the purchaser was concerned. It needed to be sure that the property could be used for the required purposes. In support of that submission Mr Bennett refers to the passage in Wallwork J's judgment where he said:"I find that there was an agreement to extend the time for compliance with the due diligence clause until after the council meeting on 18 March. I accept the plaintiff's submission that the evidence of Mr Muntz and Mr Farris should be preferred where it clashes with the evidence of Mr Davey."