EARNSHAW -v- GORMAN & SONS PTY LTD [2001] WASCA 50

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 50
Court:	THE FULL COURT (WA)
Case No:	FUL:133/2000	Heard:	1 FEBRUARY 2001
Coram:	MALCOLM CJ WALLWORK J STEIN AJ	Delivered:	28/02/01
No of pages:	22	Judgment Part:	1 of 1
Result:	Appeal dismissed
PDF Version

Parties:	DENNIS CHARLES EARNSHAW GORMAN & SONS PTY LTD
Catchwords:	Contract Contract for the sale of farm shed to be demolished by buyer and removed Agreement constituted by tender document amended by oral agreement Provision for specified time to remove shed deleted Whether time to remove shed unlimited or shed required to be removed within a reasonable time Notwithstanding express provision in written contract, time not of the essence Whether time for demolition and removal unlimited or required within a reasonable time, contract could not be terminated without prior notice by vendor requiring performance Vendor not able to deliver when buyer sought to remove Vendor liable for damages for breach of contract
Legislation:	Nil
Case References:	Balog v Crestani (1975) 132 CLR 289 Carr v JA Bannon Pty Ltd (1953) 89 CLR 327 Carr v JA Berryman Pty Ltd (1953) 89 CLR 327 Ciavarella v Balmer (1983) 57 ALJR 632 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Ellmore (Maitland) Pty Ltd v Tull (1995) 7 BPR 14,035 Green v Somerville (1979) 141 CLR 594 Halkidis v Bugeia [1974] 1 NSWLR 423 Investors Compensation Scheme Ltd v West Bromich Building Society [1998] 2 WLR 896 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 Louinder v Leis (1982) 149 CLR 509 McNally v Waitzer [1981] 1 NSWLR 294 Re Ferdinando; Ex parte Australia and New Zealand Banking Group Ltd (1993) 42 FCR 243. Shevill v Builders Licensing Board (1982) 149 CLR 620 St E Promotions Pty Ltd v Tobin Bros Pty Ltd (1994) 122 ALR 637 Sunstar Fruit Pty Ltd v Cosmo [1995] 2 Qd R 214 Waltons Stores (Interstate) Ltd v Maher (1989) 164 CLR 387 Mannai Investments Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : EARNSHAW -v- GORMAN & SONS PTY LTD [2001] WASCA 50 CORAM : MALCOLM CJ

WALLWORK J

STEIN AJ

HEARD : 1 FEBRUARY 2001 DELIVERED : 28 FEBRUARY 2001 FILE NO/S : FUL 133 of 2000 BETWEEN : DENNIS CHARLES EARNSHAW

Appellant

AND

GORMAN & SONS PTY LTD

Respondent

Catchwords:

Contract - Contract for the sale of farm shed to be demolished by buyer and removed - Agreement constituted by tender document amended by oral agreement - Provision for specified time to remove shed deleted - Whether time to remove shed unlimited or shed required to be removed within a reasonable time - Notwithstanding express provision in written contract, time not…

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.

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Details

Case: [2001] WASCA 50
Decision Date: 28 FEBRUARY 2001

CaseChat Overview and Summary

In the case of Earnshaw v Gorman & Sons Pty Ltd, the dispute involved the sale of a farm shed by the vendors, Gorman & Sons Pty Ltd, to the plaintiff, Earnshaw. The contract for sale stipulated that the shed was to be demolished by the buyer and removed. The contract was constituted by a tender document which had been amended by an oral agreement. The issue was whether the time to remove the shed was unlimited or required to be removed within a reasonable time, given that time was not of the essence and the contract could not be terminated without prior notice by the vendor requiring performance. The vendor was also unable to deliver when the buyer sought to remove the shed.

The court considered whether the time for demolition and removal was unlimited or whether it had to be done within a reasonable time. The court found that the vendors were liable for damages for breach of contract as they were unable to deliver when the buyer sought to remove the shed. The court held that notwithstanding the express provision in the written contract, time was not of the essence and the contract could not be terminated without prior notice by the vendor requiring performance. The vendors were also liable for damages for breach of contract as they were unable to deliver when the buyer sought to remove the shed.

The court's reasoning and outcome was that the vendors were liable for damages for breach of contract as they were unable to deliver when the buyer sought to remove the shed. The court held that the time for demolition and removal was not unlimited and had to be done within a reasonable time. The vendors could not terminate the contract without prior notice by the vendor requiring performance. The appeal was dismissed.

Orders

Orders of the court

Appeal 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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