El Ali v Tritton

Case [2019] NSWCA 111

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: El Ali v Tritton [2019] NSWCA 111
Hearing dates: 29 April 2019
Date of orders: 17 May 2019
Decision date: 17 May 2019
Before: Macfarlan JA at [1]; Leeming JA at [2]; Payne JA at [3]
Decision:

(1) Appeal allowed.
(2) Set aside order 1 made by the primary judge on 13 June 2018 and in lieu thereof make the following order:
(a) Judgment for the plaintiffs in the sum of $66,934.16 (being $60,000 plus $6,934.16 in interest).
(3) The respondents to pay the appellant’s costs of the appeal.

Catchwords:

CONTRACTS – remedies – damages – time of assessment – whether the primary judge erred in finding that the measure of loss was the difference between the price payable under the contract and the amount attributable to the land under a resale contract 9 months later – whether the prima facie rule governing damages for breach of a contract for sale of land should give way where the purchasers did not accept the repudiation of the contract and promptly sought an order for specific performance – whether damages should be assessed at the date the remedy of specific performance was no longer available and the contract was lost – whether the best evidence of the market value of the land at that date was the purchasers’ offer of sale 7 months later or the amount attributable to the land under a resale contract 9 months later – where there was no evidence of the terms of the offer

 

CONTRACTS – remedies – damages – whether the primary judge erred in assessing damages for increased building costs – whether damages for increased building costs were too remote – where the purchasers bought a different kind of property which necessitated a different kind of home – where there was no evidence

 

CONTRACTS – remedies – damages – whether the primary judge erred in assessing damages for rental payments – whether loss was proven – whether damages for rental payments were too remote – where the purchasers had to continue to rent when they would otherwise have occupied the land after construction of a house on the land was completed – where there was no evidence

  CONTRACTS – remedies – damages – whether the primary judge erred in assessing damages for interest on a loan – whether loss was proven – whether damages for interest on a loan were too remote – where there was no sufficient evidence
Cases Cited: Baguley v Lifestyle Homes Mackay Pty Ltd [2015] QCA 75
Baltic Shipping Co v Dillon (1993) 176 CLR 344; [1993] HCA 4
Broughton v B & B Group Investments Pty Ltd [2017] VSCA 227
Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653; [1986] HCA 81
Clark v Macourt (2013) 253 CLR 1; [2013] HCA 56
European Bank Ltd v Evans (2010) 240 CLR 432; [2010] HCA 6
Hadley v Baxendale (1854) 9 Exch…

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AGLC
El Ali v Tritton [2019] NSWCA 111
Case
[2019] NSWCA 111
Decision Date

CaseChat Overview and Summary

The appeal in *El Ali v Tritton* concerned a dispute over damages awarded for breach of a contract for the sale of land. The purchasers, the respondents, had sought specific performance of the contract, which was ultimately refused by the primary judge. The primary judge then proceeded to assess damages. The purchasers, the appellants, appealed this assessment.

The central legal issues before the Court of Appeal were whether the primary judge erred in assessing the measure of damages. Specifically, the court considered whether the damages should have been assessed at the date specific performance became unavailable, and whether the primary judge correctly determined the market value of the land at that time. Further issues included whether damages for increased building costs, rental payments, and interest on a loan were too remote and sufficiently proven.

The Court of Appeal found that the primary judge had erred in assessing damages. The court held that the prima facie rule for assessing damages in a contract for the sale of land, which is typically the difference between the contract price and the market value at the date of breach, should not apply in this instance. This was because the purchasers had not accepted the repudiation and had sought specific performance. The court determined that damages should be assessed at the date the remedy of specific performance was no longer available and the contract was lost. The court also found that the evidence presented regarding the market value of the land, increased building costs, rental payments, and interest on a loan was insufficient to support the primary judge's assessment.

Consequently, the appeal was allowed. The order of the primary judge was set aside, and judgment was entered for the plaintiffs (appellants) in the sum of $66,934.16, which included $60,000 in damages and $6,934.16 in interest. The respondents were ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

(1) Appeal allowed.

(2) Set aside order 1 made by the primary judge on 13 June 2018 and in lieu thereof make the following order:

(a) Judgment for the plaintiffs in the sum of $66,934.16 (being $60,000 plus $6,934.16 in interest).

(3) The respondents to pay the appellant’s costs of the appeal.

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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