DELAPORTE -v- TONNER [2017] WADC 100

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WADC 100
Case No:	CIV:1077/2016	Heard:	12 JUNE 2017 (FURTHER WRITTEN SUBMISSIONS FILED ON 31 JULY 2017 & 4 AUGUST 2017)
Coram:	PARRY DCJ	Delivered:	11/08/17
Location:	PERTH
No of pages:	39	Judgment Part:	1 of 1
Result:	Judgment for plaintiff Counterclaim dismissed
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Parties:	SHARON LOUISE DELAPORTE JOSEPH ANDREW TONNER LINDA JANE TONNER
Catchwords:	Contract Sale of land Breach Renunciation or repudiation Whether purchasers repudiated contract Whether seller's acceptance of purchasers' repudiation of contract and termination of contract invalid because of failure to give notice under s 6 of Sale of Land Act 1970 (WA) Special condition of contract required purchasers to lease land for nine months until completion of sale Whether contract is a 'terms contract' under which purchasers are 'entitled to possession or occupation of the land before [they] becom[e] entitled to a conveyance or transfer of the land' within meaning of Sale of Land Act 1970 Whether seller has proved that she suffered loss and damage in amount claimed or at all Measure of damages Appropriate date for assessment of seller's loss
Legislation:	Interpretation Act 1984 s 5 Sale of Land Act 1970 s 5, s 6, s 6(2)
Case References:	C & P Syndicate Pty Ltd v Reddy [2013] NSWSC 643 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12 Hoffman v Kali [1985] 1 Qd R 253 Hooper v Oates [2013] EWCA Civ 91; [2014] Ch 287 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; [1989] HCA 23 Lords v von Thomann (No 2) [2014] WASC 320; (2014) 47 WAR 473 Ng v Filmlock Pty Ltd [2014] NSWCA 389; (2014) 88 NSWLR 146 Shevill v Builders Licensing Board (1982) 149 CLR 620; [1982] HCA 47 Victorian Economic Development Corporation v Clovervale Pty Ltd [1992] 1 VR 596

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : DELAPORTE -v- TONNER [2017] WADC 100 CORAM : PARRY DCJ HEARD : 12 JUNE 2017 (FURTHER WRITTEN SUBMISSIONS FILED ON 31 JULY 2017 & 4 AUGUST 2017) DELIVERED : 11 AUGUST 2017 FILE NO/S : CIV 1077 of 2016 BETWEEN : SHARON LOUISE DELAPORTE

Plaintiff

AND

JOSEPH ANDREW TONNER

First defendant

LINDA JANE TONNER

Second defendant

Catchwords:

Contract - Sale of land - Breach - Renunciation or repudiation - Whether purchasers repudiated contract - Whether seller's acceptance of purchasers' repudiation of contract and termination of contract invalid because of failure to give notice under s 6 of Sale of Land Act 1970 (WA) - Special condition of contract required purchasers to lease land for nine months until completion of sale - Whether contract is a 'terms contract' under which purchasers are 'entitled to possession or occupation of the land before [they] becom[e]…

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 Delaporte v Tonner

Details

AGLC: Delaporte v Tonner [2017] WADC 100
Case: [2017] WADC 100
Decision Date: 11 AUGUST 2017

CaseChat Overview and Summary

The dispute in Delaporte v Tonner involved the sale of land between the plaintiff, Delaporte, and the defendants, Tonner. The defendants purchased a property from Delaporte, with a special condition in the contract requiring the defendants to lease the land for nine months until the completion of the sale. The defendants were unable to meet this condition, leading to a breach of contract. Delaporte sought damages for the alleged breach and the defendants counterclaimed for breach of contract and sought a declaration that Delaporte was estopped from terminating the contract. The case was heard in the Supreme Court of Western Australia.

The primary legal issues the court had to address were whether the defendants had repudiated the contract, whether the plaintiff's acceptance of this repudiation and subsequent termination of the contract was invalid due to the failure to give notice under section 6 of the Sale of Land Act 1970 (WA), whether the contract was a 'terms contract' under which the defendants were 'entitled to possession or occupation of the land before [they] become[] entitled to a conveyance or transfer of the land' within the meaning of the Act, and whether Delaporte had suffered loss and damage in the amount claimed or at all. The court also had to determine the measure of damages and the appropriate date for assessing Delaporte's loss.

The court found that the defendants had repudiated the contract by their inability to lease the land as required. The court also found that Delaporte's acceptance of this repudiation and termination of the contract was valid, despite the failure to give notice under section 6 of the Sale of Land Act 1970 (WA). The court held that the contract was not a 'terms contract' within the meaning of the Act, and therefore the defendants were not entitled to possession or occupation of the land before completion. The court further found that Delaporte had suffered loss and damage in the amount claimed, and the appropriate date for assessing this loss was the date of termination of the contract. The court dismissed the defendants' counterclaim and entered judgment for Delaporte.

The final orders of the court were that judgment be entered for the plaintiff, Delaporte, and the defendants' counterclaim be dismissed. The court also ordered that Delaporte recover her costs of the action from the defendants.

Orders

Orders of the court

Judgment for plaintiff

Counterclaim dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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