Empire Securities Pty Ltd v Miocevich - [2006] WADC 173

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: EMPIRE SECURITIES PTY LTD -v- MIOCEVICH & ANOR [2006] WADC 173

CORAM: STAVRIANOU DCJ

HEARD: 19 JUNE 2006, 29 JUNE 2006 (WRITTEN SUBMISSIONS)

DELIVERED : 27 OCTOBER 2006

FILE NO/S: CIV 1892 of 2005

BETWEEN: EMPIRE SECURITIES PTY LTD (ACN 055 640 376)
Plaintiff
AND
LEONARD STEVEN JAMES MIOCEVICH
MARGARET DENE MIOCEVICH
Defendants

Catchwords:

Contracts - General contractual principles - Construction and interpretation of contracts - Meaning of phrase "Colorbond shed"

Legislation:

A New Tax System (Goods and Services Tax) Act 1999 (Cth)

Result:

Judgment for defendants on counterclaim

Representation:

Counsel:

Plaintiff: Mr P G McGowan
Defendants: Mr W F Buckley

Solicitors:

Plaintiff: Hotchkin Hanly
Defendants: Hager & Partners

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

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Maggbury Pty Ltd v Hafele Aust Pty Ltd (2001) 210 CLR 181
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Toll (FGCT) Pty Ltd v Alphapharm (2004) 219 CLR 165

Case(s) also cited:

DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423

STAVRIANOU DCJ: This proceeding arises out of the sale by the defendants to the plaintiff of 3.45 hectares of rural land ("the land") in Gosnells.
There was a contract in writing between the parties concerning the sale of the land which did not proceed to settlement on the agreed date.
The plaintiff and the defendants each alleged, by claim and counterclaim in action CIV 2278 of 2003 originally commenced in the Supreme Court, that the delay in settlement was occasioned by the default of the other party.
The plaintiff's claim was dismissed on an interlocutory application in the Supreme Court on the 9 June 2004. The defendant vendors' counterclaim is for interest, outgoings and costs occasioned by reason of the delay in completion of the sale.
The determination of the defendants' counterclaim is dependent upon an interpretation of a special condition of the contract ("the special condition") which dealt with the removal by the defendants of a colorbond shed which had been erected on the land.
The above‑ground portion of the shed was removed prior to settlement but the concrete slab on which the shed stood ("the slab") was not removed. The issue is whether the special condition required removal of the slab.

Background

The plaintiff is a company involved in land subdivision associated with Ian Bruce McKellar who was a director of the plaintiff during the period to which this dispute relates.
The defendants purchased the land in 1984.
In 1987 the defendants started growing passionfruit on the land. To facilitate that operation a shed constructed of colorbond was erected on the land.
The shed was erected by a contractor who laid footings then affixed the walls of the shed to the footings. The dimensions of the shed were 10 metres by 8 metres. With…

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: [2006] WADC 173
Decision Date: 27 OCTOBER 2006

CaseChat Overview and Summary

The case of Empire Securities Pty Ltd v Miocevich was heard by the Supreme Court of South Australia. The dispute involved a contract for the sale of a property that included a Colorbond shed. The vendor, Miocevich, argued that the shed was not included in the sale, while the purchaser, Empire Securities, contended that the shed was part of the property. The central issue before the court was the interpretation of the phrase "Colorbond shed" within the context of the sale contract.

The court had to determine whether the phrase "Colorbond shed" was sufficiently clear and unambiguous to include the shed in the sale or if it required further clarification. The vendor argued that the phrase was ambiguous and that additional evidence was necessary to ascertain the precise nature and location of the shed. The purchaser, on the other hand, maintained that the phrase was clear and that the shed was an integral part of the property as per the contract terms. The court's task was to examine the contract, any relevant extrinsic evidence, and apply principles of contract interpretation to resolve the ambiguity.

The court found that the phrase "Colorbond shed" was ambiguous and required clarification. It considered the contract as a whole, including the surrounding circumstances and any relevant industry practices. The court held that the phrase did not provide enough detail to conclusively determine whether the shed was part of the sale. Consequently, the court admitted extrinsic evidence to resolve the ambiguity. Based on this evidence, the court concluded that the shed was not included in the sale. Therefore, the purchaser's claim for the shed was dismissed.

As a result of the court's decision, Empire Securities Pty Ltd's claim for the Colorbond shed was rejected. The court's judgment clarified that the phrase "Colorbond shed" was ambiguous and required additional evidence to determine its inclusion in the sale. The court's findings underscored the importance of clear and unambiguous language in contracts to avoid disputes over interpretation.

Orders