Dickinson & Thompson v Gribble - [2017] SADC 108

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
DICKINSON & THOMPSON v GRIBBLE & ANOR
[2017] SADC 108
Reasons for Decision of Her Honour Judge Tracey
28 September 2017
REAL PROPERTY - TORRENS TITLE - CAVEATS AGAINST DEALINGS - REMOVAL - PARTICULAR CASES
Application pursuant to s 119(G) of the Real Property Act 1886 to extend caveat over property until plaintiffs’ claim for specific performance determined at trial. Plaintiff contracted on three occasions to purchase property from the defendants. Parties agreed to terminate the first two contracts. Third contract subject to a condition the plaintiffs to obtain finance. Defendants’ Agent served Form 1 before the third contract signed and informed purchaser’s agent that a new Form 1 would be forwarded. No deposit paid. After valuation by finance provider, plaintiffs contacted Agent and defendants regarding contract price. Defendants purported to terminate the contract on basis plaintiffs had not obtained and communicated approval of finance. Plaintiffs inform Agent prepared to settle within 14 days. Defendants forward notice of termination on ground no deposit paid. Whether there is a prima facie case – whether balance of convenience favours extending the caveat.
Held: There is a prima facie case, serious issue to be tried and balance of convenience favours extending the caveat
Real Property Act 1886 (SA) s 119(G); The Land and Business (Sale and Conveyancing) Act 1994 (SA), referred to.
Australian Broadcasting Corporation v O’Neill [2006] HCA 46; Cini & Others v Pets Paradise Franchising (SA) Pty Ltd & Others [2009] SASC 7; McInnes v Davies [2015] SADC 88; McInnes v Davies [2014] SASC 184; Laurinda Pty Ltd v Capalba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; Shevill and Another v Builder’s Licensing Board 149 CLR 620, considered.

DICKINSON & THOMPSON v GRIBBLE & ANOR
[2017] SADC 108
Background

The plaintiffs Kylie Dickinson and Jeremy Thompson have made an application pursuant to s 119(G) of the Real Property Act 1886 (SA) to extend a caveat over land described in Certificate of Title Register Book 5436 Folio 77 (‘the property’) until their claim for specific performance of a contract for the sale of the property is determined at trial.
On 14 September 2017 I ordered that time for removal of the caveat be extended until further order, to allow for the hearing of the application. In support of the application, affidavits of Kylie Dickinson sworn on 8 September 2017 and 12 September 2017 and 13 September 2017 have been filed. In reply, I have received affidavits from the first defendant Donald Gribble, sworn on 20 September 2017, real estate agent Jane Willson (‘the Agent’) sworn on 20 September 2017, and the defendants’ conveyancer, Robyn Steer (‘Ms Steer’) sworn on 20 September 2017.
The defendants are the registered proprietors of the property located at 29 Tolley Road, Nuriootpa. The defendants engaged the Agent to sell the property.
The plaintiffs own and operate a furniture removal business and were interested in the property given its location, size, industrial zoning…

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 Dickinson & Thompson v Gribble

Details

AGLC: Dickinson & Thompson v Gribble [2017] SADC 108
Case: [2017] SADC 108
Decision Date: 28 September 2017

CaseChat Overview and Summary

In Dickinson & Thompson v Gribble, the plaintiffs sought to extend their caveat over property until their claim for specific performance was determined at trial. The plaintiffs had entered into a contract to purchase property from the defendants, with the third contract being subject to the condition that the plaintiffs obtain finance. Before the third contract was signed, the defendants' agent served a Form 1 and informed the purchaser's agent that a new Form 1 would be forwarded. Despite this, no deposit was paid. Following a valuation by the finance provider, the plaintiffs contacted the agent and the defendants regarding the contract price. The defendants then purported to terminate the contract, claiming that the plaintiffs had not obtained and communicated approval of finance. The plaintiffs subsequently informed the agent that they were prepared to settle within 14 days. However, the defendants forwarded a notice of termination on the ground that no deposit had been paid.

The legal issues in this case centred on whether the plaintiffs had established a prima facie case for specific performance and whether the balance of convenience favoured extending the caveat. The court needed to determine if the plaintiffs had demonstrated a sufficient likelihood of success in their claim for specific performance and if, in the interim, the balance of convenience weighed in favour of maintaining the caveat over the property.

The court found that the plaintiffs had established a prima facie case for specific performance as they had demonstrated a valid and enforceable contract with the defendants. The court considered the circumstances surrounding the contract, including the plaintiffs' readiness to settle and the defendants' actions in purporting to terminate the contract without a deposit. The court concluded that the balance of convenience favoured extending the caveat because the plaintiffs had a strong likelihood of success in their claim for specific performance, and maintaining the caveat would prevent the defendants from dealing with the property in a way that could prejudice the plaintiffs' rights.

The court granted the plaintiffs' application to extend the caveat over the property until the determination of their claim for specific performance. The order was made to ensure that the defendants could not dispose of or deal with the property in a manner that might undermine the plaintiffs' rights pending the resolution of the substantive claim.

Orders