Egan v Geraghty - [1994] QCA 8

IN THE COURT OF APPEAL	[1994] QCA 008
SUPREME COURT OF QUEENSLAND

Appeal No. 138 of 1993

Before

The President
Mr Justice Pincus
Mr Justice Williams

[Egan v. Geraghty]

BETWEEN:

JILLIAN ADELAIDE EGAN

(Plaintiff) Respondent

- and -

CARMEL THERESA GERAGHTY

(Defendant) Appellant

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 16/02/94

This is an appeal from a judgment in the District Court at Southport given on 25 June 1993. The trial judge held that the respondent had lawfully terminated a contract for the sale of a house property made between the parties on 17 February 1986 by a letter dated 18 October 1989. The appellant was the purchaser of the property and the respondent the vendor, although at all material times the registered proprietor according to the certificate of title was Albert Edward Sheppard, who had died on 27 July 1985.

By his last will, dated 1 March 1984, the deceased had appointed the respondent as his executrix and major beneficiary. These circumstances were known to the parties, and clauses 30 and 35 of the contract respectively provided:

"30. The parties hereto acknowledge that the relative Certificate of Title is still registered in the name of the deceased Albert Edward Sheppard. The Vendor covenants that she will use her best endeavours to become registered as proprietor of the subject land as soon as is reasonably practicable. In the event that the Vendor is not so registered as proprietor on or before the date for completion [4 March 1986], the parties hereto agree that the date for completion shall be extended until the expiration of the period of fourteen (14) days notice in writing for the Vendor to the purchaser that the Vendor is so registered as proprietor. The Vendor shall keep the Purchaser fully informed as to the progress of the Vendor obtaining a grant of Probate of the will of the said deceased and becoming registered as proprietor aforesaid.
...
35. This contract is conditional upon the Vendor obtaining a grant of Probate of the will of the Registered Proprietor of the subject land in her favour on or before 1 June 1986. In the event that such grant is not so obtained either party hereto may cancel this Contract and upon such cancellation all monies paid hereunder on account of the purchase price (other than rent under Clause 32 hereof) shall be refunded in full to the Purchaser and this Contract shall be thereby discharged."

Prior to the signature of the contract, there had been communications between the respondent's solicitors and the solicitors for one Donald Burningham, who on 3 March 1986 filed a caveat in the Supreme Court against the grant of probate in respect of the will dated 1 March 1984.

Burningham claimed an interest under an earlier will, and asserted that the deceased lacked testamentary capacity when he made the will dated 1 March 1984 and that the respondent had exerted undue influence.

A writ claiming probate in solemn form was issued against Burningham…

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 Egan v Geraghty

Details

AGLC: Egan v Geraghty [1994] QCA 8
Case: [1994] QCA 8
Decision Date: 16/02/1994

CaseChat Overview and Summary

This appeal concerns a contract for the sale of a house property made between the parties on 17 February 1986. The contract was conditional on the vendor obtaining a grant of Probate of the will of the registered proprietor of the subject land in her favour on or before 1 June 1986. The vendor, Jillian Egan, did not obtain the grant of Probate by the specified date, and the purchaser, Carmel Geraghty, terminated the contract by letter dated 18 October 1989. The District Court held that the termination was lawful and dismissed the vendor's claim for specific performance. The vendor appealed to the Supreme Court of Queensland, which allowed the appeal and ordered specific performance of the contract. The purchaser appealed to the Court of Appeal.

The Court of Appeal considered two main issues. First, whether the vendor was required to do no more than she could reasonably do in all of the circumstances to achieve the contractual objective, and if so, whether she had done all that was required by retaining apparently competent solicitors and counsel. The Court held that the vendor was responsible for the conduct of her lawyers and that she would have breached her obligation to use her "best endeavours" if those representing her failed to prosecute the probate action diligently. Second, the Court considered whether the vendor's conduct was the sole, or at least the dominant, cause why probate was not obtained by 1 June 1989. The Court held that the question to be asked is whether the conduct of the vendor was a significant contributing factor. The Court found that the vendor was not using her "best endeavours" to conclude the probate litigation, and therefore she was not in a position to bring the contract to an end on account of the non-fulfilment of the condition in cl. 35.

The Court of Appeal allowed the appeal, set aside the orders made below, and ordered specific performance of the contract between the appellant and the respondent dated 17 February 1986. The parties were to bring in minutes of orders to deal with other matters. All judges concurred as to the orders made.

Orders