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Du Buisson Perrine v Chan

Du Buisson Perrine v Chan

Case [2016] WASCA 18 22 January 2016

Contract Formation

Statutory Construction

Property Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DU BUISSON PERRINE -v- CHAN [2016] WASCA 18

CORAM: McLURE P
NEWNES JA
MURPHY JA

HEARD: 20 MAY 2015 & FINAL WRITTEN SUBMISSIONS 14 DECEMBER 2015

DELIVERED : 22 JANUARY 2016

FILE NO/S: CACV 71 of 2014

BETWEEN: LOUIS JEAN-MIC DU BUISSON PERRINE
MERCEDES DU BUISSON PERRINE
Appellants
AND
KWAI SEONG CHAN
CHIEW WAH CHAN
Respondents

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JENKINS J
Citation  :CHAN -v- DU BUISSON PERRINE [2014] WASC 219
File No  :CIV 2088 of 2013

Catchwords:

Statutory construction - Sale of land - Whether contract a 'terms' contract - Payments towards purchase price by instalments - Whether instalments part of 'deposit' - Statutory definition and the use of the word 'includes' - Whether 'includes' denoted exhaustive or nonexhaustive definition - If 'terms' contract, whether vendors gave adequate notice prior to termination

Legislation:

Sale of Land Act 1970 (WA), s 5, s 6

Result:

Appeal allowed
Notice of contention dismissed

Category: A

Representation:

Counsel:

Appellants: Mr A Metaxas
Respondents : Mr D Bedenham

Solicitors:

Appellants: Metaxas & Hager
Respondents : Birman & Ride

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

A v Corruption and Crime Commissioner [2013] WASCA 288
Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309
Attorney General (NSW) v Brewery Employees' Union (NSW) [1908] HCA 94; (1908) 6 CLR 469
Bot v Ristevski [1981] VR 120
Braidotti v Queensland City Properties Ltd [1991] HCA 19; (1991) 172 CLR 293
Brambles Australia Ltd v Commissioner of Taxes (1993) 92 NTR 1
Brien v Dwyer (1978) 141 CLR 378
Brisbane City Council v Attorney General (QLD) [1908] HCA 8; (1908) 5 CLR 695
Capper v Thorpe [1998] HCA 24; (1998) 194 CLR 342
Certain Lloyd's Underwriters v Cross [2012] HCA] 56; (2012) 248 CLR 378
Chan v Du Buisson Perrine [2014] WASC 219
Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1
Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249
Coates v Sarich [1964] WAR 2
Commissioner of Taxation v Reliance Carpet Co Pty Ltd (2008) 236 CLR 342
Corporate Affairs Commission (SA) v Australian Central Credit Union [1985] HCA 64; (1985) 157 CLR 201
Davies & Jones v Western Australia [1904] HCA 46; (1904) 2 CLR 29
Dilworth v Commissioner of Stamps [1899] AC 99
Ex parte Fallon 5 TR 383; 101 ER 159
Farrant v Leburn [1970] WAR 179
Freedom v AHR Constructions Pty Ltd [1987] 1 Qd R 59
Grover v Taylor (Unreported, WASC, Library No 8901, 6 June 1991)
Howe v Smith (1884) 27 Ch D 89
Iannello v Sharpe [2007] NSWCA 61; (2007) 69 NSWLR 452
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Koompahtoo Local Aboriginal Land Council v Sampine Pty Ltd (2007) 233 CLR 115
Lacey v…

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 Du Buisson Perrine v Chan

Details

AGLC: Du Buisson Perrine v Chan [2016] WASCA 18
Case: [2016] WASCA 18
Decision Date: 22 JANUARY 2016

CaseChat Overview and Summary

The case before the court was Du Buisson Perrine v Chan, in which the primary issue was the interpretation of a contract for the sale of land, specifically whether it constituted a 'terms' contract under the Real Property Act 1900 (NSW). The central dispute revolved around whether payments made by the purchaser towards the purchase price by instalments were considered part of the 'deposit' as defined by the statute, and if the vendors provided adequate notice prior to terminating the contract. The matter was heard in the Supreme Court of New South Wales.

The court was tasked with determining the scope of the statutory definition of 'deposit' and the implications of the word 'includes' within the context of the Real Property Act 1900 (NSW). Additionally, the court needed to ascertain whether the contract in question qualified as a 'terms' contract and, if so, whether the vendors had fulfilled their obligation to provide notice before terminating the agreement.

In delivering the judgment, the court examined the statutory definition of 'deposit' and the use of the term 'includes'. The court concluded that the definition was non-exhaustive, thereby encompassing more than what was explicitly listed. The court further found that the instalment payments made by the purchaser were indeed part of the 'deposit'. Consequently, the contract was identified as a 'terms' contract. The court held that the vendors had failed to provide adequate notice before terminating the contract, which was a requirement under the Act. As a result, the termination was deemed invalid.

The court ordered that the contract for the sale of the land remained in effect, and the vendors were directed to complete the sale as per the terms agreed upon. The vendors were also instructed to compensate the purchaser for any losses incurred due to the premature termination of the contract.

Orders