DEVELOPMENTS (WA) PTY LTD -v- PRICE [2008] WASC 260

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 260
Case No:	CIV:1437/2006	Heard:	29 AUGUST & 19 SEPTEMBER 2008
Coram:	McKECHNIE J	Delivered:	13/11/08
No of pages:	5	Judgment Part:	1 of 1
Result:	Decree of specific performance
Category:	B
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Parties:	DEVELOPMENTS (WA) PTY LTD (ACN 008 952 252) LESLIE MATTHEW PRICE
Catchwords:	Real property Contract for purchase of land Standard conditions Subject to finance approval Approval not obtained in time Immediate right to termination Whether exercised Affirmation of contract Waiver Estoppel Words and phrases 'immediate'
Legislation:	Nil
Case References:	Developments (WA) Pty Ltd v Whittle-Herbert [2008] WASC 261

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : DEVELOPMENTS (WA) PTY LTD -v- PRICE [2008] WASC 260 CORAM : McKECHNIE J HEARD : 29 AUGUST & 19 SEPTEMBER 2008 DELIVERED : 14 NOVEMBER 2008 FILE NO/S : CIV 1437 of 2006 BETWEEN : DEVELOPMENTS (WA) PTY LTD (ACN 008 952 252)

Plaintiff

AND

LESLIE MATTHEW PRICE

Defendant

Catchwords:

Real property - Contract for purchase of land - Standard conditions - Subject to finance approval - Approval not obtained in time - Immediate right to termination - Whether exercised - Affirmation of contract - Waiver - Estoppel - Words and phrases 'immediate'

Legislation:

Nil

Result:

Decree of specific performance

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr P J Hannan

Defendant : Mr N D C Dillon

Solicitors:

Plaintiff : Tottle Partners

Defendant : Wojtowicz Kelly

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

Developments (WA) Pty Ltd v Whittle-Herbert [2008] WASC 261

(Page 3)

McKECHNIE J

Introduction

1 This case was heard at the same time as CIV 1436 of 2006 Developments (WA) Pty Ltd v Whittle-Herbert. The same counsel appeared and broadly speaking the same issues arose. I have set out the law in Developments (WA) Pty Ltd v Whittle-Herbert [2008] WASC 261 and incorporate the relevant principles there set out into this judgment.

2 As a result, I limit this judgment to factual findings and the legal consequences that flow from those findings by application of the principles set out in Whittle-Herbert.

3 On 16 February 2004, Mr Price entered into a contract to buy off the plan Unit 3, 41 George Street, Midland. The purchase price of the property was $179,000. The finance approval clause provided the 'Lender' to be 'Any lender of the purchasers choice' and the 'Latest Time' to be '4.00 pm on 25 March 2004'. The 'Amount of Loan' was to be $189,000 which Mr Price explained covered the purchase price and some of the costs associated with the purchase, such as stamp duty. The contract was executed by Mr Price on 16 February 2004, and on behalf of the vendor on 17 February 2004. A deposit of $1,000 was paid on 3 March 2004. That deposit has been retained by the vendor and has not been refunded.

4 Mr Price gave evidence by way of a witness…

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 Developments (WA) Pty Ltd v Price

Details

AGLC: Developments (WA) Pty Ltd v Price [2008] WASC 260
Case: [2008] WASC 260
Decision Date: 14 NOVEMBER 2008

CaseChat Overview and Summary

The case involved Developments (WA) Pty Ltd, the plaintiff, and Price, the defendant, where the dispute revolved around the purchase of land under a contract that included a condition precedent of finance approval. The Supreme Court of Western Australia was tasked with determining whether the plaintiff's failure to terminate the contract upon the defendant's non-fulfilment of the finance condition within the specified timeframe constituted an affirmation of the contract and a waiver of the condition. The court had to decide whether the term "immediate" in the contract's termination clause required instantaneous action, or if it permitted a reasonable period for termination.

The court examined the nature of the condition precedent and the implications of the term "immediate" within the context of the contract. It considered whether the plaintiff's delay in terminating the contract constituted an affirmation of the contract, effectively waiving the finance condition. The court also explored the principles of estoppel and waiver in relation to the defendant's reliance on the contract remaining in force. The analysis required a close examination of the contractual language and the surrounding circumstances, including any communications between the parties post-default.

After careful deliberation, the court found that the term "immediate" did not necessitate instantaneous action but allowed for a reasonable period to terminate the contract. The court held that the plaintiff's delay in terminating the contract did not amount to an affirmation or waiver of the finance condition. Instead, the court determined that the defendant's reliance on the contract's continuation constituted an estoppel against the plaintiff from terminating the contract. Consequently, the court ordered specific performance of the contract, compelling the defendant to complete the purchase of the land as per the original terms.

Orders

Orders of the court

Decree of specific performance

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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