Downing v Newsflash Nominees Pty Ltd
[2012] WASCA 111
•22 MAY 2012
DOWNING -v- NEWSFLASH NOMINEES PTY LTD [2012] WASCA 111
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 111 | |
| THE COURT OF APPEAL (WA) | 22/05/2012 | ||
| Case No: | CACV:9/2012 | 4 MAY 2012 | |
| Coram: | PULLIN JA | 4/05/12 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for suspension order upheld | ||
| B | |||
| PDF Version |
| Parties: | VANESSA MARY DOWNING NEWSFLASH NOMINEES PTY LTD |
Catchwords: | Appeal Application for a suspension order Turns on own facts |
Legislation: | Civil Judgments Enforcement Act 2004 (WA) |
Case References: | Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Flynn v National Australia Bank [2009] WASCA 168 Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DOWNING -v- NEWSFLASH NOMINEES PTY LTD [2012] WASCA 111 CORAM : PULLIN JA HEARD : 4 MAY 2012 DELIVERED : 4 MAY 2012 PUBLISHED : 22 MAY 2012 FILE NO/S : CACV 9 of 2012 BETWEEN : VANESSA MARY DOWNING
- Appellant
AND
NEWSFLASH NOMINEES PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
Citation : DOWNING -v- NEWSFLASH NOMINEES PTY LTD [2012] WADC 26
File No : APP 69 of 2011
Catchwords:
Appeal - Application for a suspension order - Turns on own facts
(Page 2)
Legislation:
Civil Judgments Enforcement Act 2004 (WA)
Result:
Application for suspension order upheld
Category: B
Representation:
Counsel:
Appellant : Mr S Macdonald
Respondent : Mr S K Shepherd
Solicitors:
Appellant : Macdonald Rudder
Respondent : Tottle Partners
Case(s) referred to in judgment(s):
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Flynn v National Australia Bank [2009] WASCA 168
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
(Page 3)
1 PULLIN JA: On 4 May 2012, I made an order suspending enforcement of a judgment pending determination of the appeal. These are the reasons for that decision.
2 The appeal concerns a judgment of Stevenson DCJ who dismissed an appeal by the appellant and a cross-appeal by the respondent. The appeal to Stevenson DCJ was from a decision of Magistrate Boon in the Magistrates Court of Western Australia. The dispute concerned a contract for the sale of land by the respondent to the appellant. According to the reasons of Stevenson DCJ, the appellant was allowed into possession before settlement date. The date for settlement passed without settlement taking place. There were attempts made by the respondent's agent, on behalf of the respondent, to contact the appellant to ascertain her position and intention. Subsequently, a notice of default dated 13 March 2008 was issued and served on the appellant. There is no dispute that the notice was defective, because it provided for a 10-day notice period.
3 As a result of discussions between the parties, the parties signed a 'termination agreement' dated 20 March 2008. The terms of the agreement were set out by Stevenson DCJ in [18] of his reasons. That paragraph reads:
The termination agreement ... contained the following terms and conditions:
20/3/08
To Wright Real Estate
+ Newsflash P/Ltd
Re: 47C Ewen St Scarborough.
I am unable to effect settlement of 47C Ewen St, and hereby agree to terminate the contract.
I agree to forfeit the deposit funds of $17,500 held in trust by Wright Real Estate, pay to NEWSFLASH Nom. Pty Ltd. immediately.
No further claim shall be made against the seller or Wright Real Estate.
Vacant possession shall be returned to the seller on 23/3/08.
No further claims will be made against the purchaser upon inspection of the home and it being in the same condition to purchaser gaining possession.
- Yours faithfully,
Mrs V Downing
Mr Lorton (seller)
Mr Mannino (witness)
4 Stevenson DCJ's reasons continue:
It is common ground that the last clause, which provides, 'No further claims will be made against the purchaser upon inspection of the home and it being in the same condition to the purchaser gaining possession' was inserted after the agreement was initially prepared. It was intended to reflect further discussions between the parties at the time and, obviously, to record their agreement at that time.
The clause was amended at the time of its execution to delete the word 'similar', to provide that the condition in which the premises must be delivered up as being the 'same' as at the time possession was obtained. That of course, was not physically possible because at the time possession was given, the premises were brand new. On the evidence, that is not a material issue for the disposition of the appeal between the parties.
It is common ground between the parties that the appellant did not give possession of the premises to the respondent in compliance with the termination agreement, because the premises were not materially in the same condition as they were when the appellant obtained possession. However, the live issue between the parties in the appeal is the proper interpretation of the conditional release purported to be given by the respondent to the appellant in the clause I have referred too.
I note, pursuant to the termination agreement that the appellant agreed, as part of her obligations and consideration for the agreement that she would not make any further claim against the seller, which is the respondent, and also Wright Real Estate, which is the business for which Mr Mannino worked. The legal effect of the appellant's release of the respondent is not itself directly in issue in the appeal.
In the course of submissions, both counsel addressed the court in relation to the proper construction of the termination agreement in respect of the clause containing the respondent's alleged release and discharge of the appellant.
The trial before the learned magistrate proceeded on 23 August 2011 and her Honour delivered written reasons for decision on 26 August 2011.
On 15 September 2011, the appellant filed an appeal notice in this court. On 6 October 2011, the respondent filed a cross-appeal. On 23 January
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- 2012, the appellant filed submissions on the cross-appeal and a notice of intention in respect of the cross-appeal.
In summary, the learned magistrate found, on the evidence, that the appellant repudiated the land contract; that her statements and conduct in this regard constituted a repudiatory breach; and that the respondent accepted that breach, thereby terminating the land contract [19] - [26].
5 On appeal to the District Court, the appellant contended that the magistrate erred in finding that there was repudiation by the appellant. The appellant also contended in the District Court that there was no evidence of acceptance of that repudiation.
6 In addition, the appellant contended that the magistrate erred in her construction of the termination agreement and that the magistrate should have found that the termination agreement terminated the contract by accord and satisfaction. The respondent's contention in the District Court was that the termination agreement merely evidenced the oral agreement of the parties terminating the contract. The appellant contended that on its proper construction, there was a complete release by the respondent of the appellant in respect of all claims except those which may fairly be said to arise out of a failure to deliver up the premises in the same or nearly the same condition on giving possession back to the respondent as they were in when she took possession.
7 Stevenson DCJ held that he was not persuaded that the magistrate was in error in finding that there was a repudiation or in finding that the respondent accepted there was such a repudiation.
8 It is not necessary to discuss the cross-appeal.
9 The appellant now appeals to this court alleging that the District Court judge erred in his conclusions about the construction of the agreement and erred in failing to uphold the grounds of appeal relating to the findings about repudiation and acceptance of the repudiation.
10 The principles governing an application for a suspension order under the Civil Judgments Enforcement Act 2004 (WA)are not in dispute. They are that a successful litigant will ordinarily be entitled to enforce the judgment pending the determination of the appeal; that it is for the applicant for a stay to move the court to a favourable exercise of its discretion; and that the court will not grant a stay unless special circumstances are shown justifying departure from the ordinary rule. In determining whether there are special circumstances, the first issue which is usually addressed is whether or not the appeal might be rendered
(Page 6)
- nugatory if the stay is not granted. If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success and the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant: see Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9], which although it was a case before the passing of the Civil Judgments Enforcement Act is still regarded as stating the relevant principles. See for example Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203; Flynn v National Australia Bank [2009] WASCA 168 and many other cases to similar effect.
11 I was satisfied that the appellant had established on the evidence that the appeal may be rendered nugatory if a stay were not granted. The respondent company has share capital of only a few dollars. Searches of land title reveal that it owns no land and there is a registered charge over whatever assets the company has. There is no evidence that it is carrying on business.
12 The balance of convenience favours a stay. That leaves only the question about whether or not there are reasonable prospects of success in the appeal. A reasonable prospect of success is a ground which has a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding.
13 Some grounds of appeal require a full review of the evidence. It is not possible to conduct such a full review on an application of this kind. The construction of the last paragraph of the agreement arguably depends upon whether the findings that there had been a repudiation and an acceptance of that repudiation were correct. The appellant contends that all the events occurred on 20 March when the agreement was signed and that there was no repudiation or, alternatively, if there was repudiation, then there was no acceptance of such repudiation. The contention of the appellant is that in the circumstances, properly construed, the agreement did not leave open the claim for damages which was allowed and made the subject of judgment in the Magistrates Court.
14 The respondent's argument was that the magistrate and the District Court judge properly construed the agreement as being one which excluded claims only if the property was handed back in the same condition as it was in when the appellant was given possession and properly found that the contract had been repudiated and the repudiation had been accepted. There is no dispute that the property was not handed
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- back in the same condition. However, that is not to say that the appellant's arguments are illogical or fanciful. For those reasons, I concluded that a suspension order should be made.
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