Elly Property Wright Residential Pty Ltd v Elliott - [2023] ACTSC 138

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Elly Property Wright Residential Pty Ltd v Elliott
Citation:	[2023] ACTSC 138
Hearing Date(s):	15 May 2023
DecisionDate:	6 June 2023
Before:	Curtin AJ
Decision:	See [106]
Catchwords:	CONTRACTS – Formation – Agreement – Intention to make a concluded bargain – Whether there was a concluded contract – Whether an agreement was formed to rescind a contract AGENCY – Solicitor and client – Authority – Solicitor negotiating agreement on behalf of client – Whether solicitor had authority to bind client
Legislation Cited:	Civil Law (Sale of Residential Property) Act 2003 (ACT), ss 19B, 19C
Cases Cited:	Baulkham Hills Private Hospital Pty Ltd v G R securities Pty Ltd (1986) 40 NSWLR 622 Donellan v Watson (1990) 21 NSWLR 335 Masters v Cameron (1954) 91 CLR 353 Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605
Texts Cited:	Dal Pont, G, Law of Agency (4th ed, LexisNexis, 2020) Dal Pont, G, Solicitors Manual (LexisNexis, 2017)
Parties:	Elly Property Wright Residential Pty Ltd ( Plaintiff) Christopher Ross Elliott ( First Defendant) Thuy Quynh Trang Vu (Second Defendant)
Representation:	Counsel S Onitiri ( Plaintiff) A Chakrabarty ( First and Second Defendant)
Solicitors Harrington Hall ( Plaintiff) Adero Law ( First and Second Defendant)
File Number(s):	SC 54 of 2023

Curtin AJ:

Introduction

These proceedings concern a dispute between a seller and buyer of residential property as to whether a binding and enforceable oral agreement was reached between the parties’ legal representatives on 9 November 2022.
The plaintiff’s case was to the effect that such an agreement did come into existence on that date, and that the agreement was to the effect that the seller would pay the buyers the sum of $47,000 on or before 23 December 2022 in exchange for the buyers providing written consent to the recission of the contract for sale of land sufficient to comply with the requirements of s 19B(a) of the Civil Law (Sale of Residential Property) Act2003 (ACT) (the Act).
There were two main issues in the case.
The first issue was whether a binding and enforceable agreement was entered into between the parties’ legal representatives on 9 November 2022.
The second issue was whether the defendants’ solicitor had authority to bind the defendants to any such agreement.
The issues are interrelated because the determination of the second issue influences how the facts pertaining to the first issue should be viewed.
For the reasons that follow I have found that the defendant’s solicitor did not have authority to bind his clients to the alleged agreement. That finding is sufficient to determine the matter, but against the event that my conclusion as to authority is incorrect, I would have found that there was no binding and enforceable oral agreement as of 9 November 2022.

Background

All communications relevant to this case were conducted between the parties’ legal representatives,…

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: [2023] ACTSC 138
Decision Date

CaseChat Overview and Summary

Elly Property Wright Residential Pty Ltd v Elliott was a case heard in the Supreme Court of the Australian Capital Territory, which revolved around a dispute between a seller and buyer of residential property regarding whether a binding and enforceable oral agreement was reached between their legal representatives on 9 November 2022. The plaintiff claimed that such an agreement was made, with the seller to pay the buyers $47,000 in exchange for the buyers' written consent to the recission of the contract for sale of land. The two main issues were whether a binding and enforceable agreement was reached and whether the defendants' solicitor had the authority to bind his clients to any such agreement.

Curtin AJ found that the defendants' solicitor did not have the authority to bind his clients to the alleged agreement, which was sufficient to determine the matter. However, the judge also found that there was no binding and enforceable oral agreement as of 9 November 2022, even if the conclusion on authority was incorrect. The court determined that a reasonable person in the position of the plaintiff and defendants would not have thought an immediately binding agreement was made on 9 November 2022 with additional terms to be subsequently added by consent. The objective intention of the parties was that there would be no binding agreement unless and until they executed a formal contract.

The final orders of the court were:
(1) The application was dismissed.
(2) The plaintiff was to pay the defendants' costs.

Orders