Empire Securities Pty Ltd v Miocevich - [2008] WASCA 52

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: EMPIRE SECURITIES PTY LTD -v- MIOCEVICH [2008] WASCA 52

CORAM: PULLIN JA
MILLER JA
EM HEENAN AJA

HEARD: 12 FEBRUARY 2008

DELIVERED : 4 MARCH 2008

FILE NO/S: CACV 148 of 2006

BETWEEN: EMPIRE SECURITIES PTY LTD
Appellant
AND
LEONARD STEVEN JAMES MIOCEVICH
MARGARET DENE MIOCEVICH
Respondents

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STAVRIANOU DCJ
Citation  :EMPIRE SECURITIES PTY LTD v MIOCEVICH [2006] WADC 173
File No  :CIV 1892 of 2005

Catchwords:

Contract - Real property - Sale of land - Contract of sale providing for removal by vendors of a shed before settlement - Shed a fixture - Shed removed before settlement but concrete floor left in situ - Whether compliance with term of contract - Whether vendors entitled to interest under contract for delay by purchaser in settling - Whether vendors at all material times ready, willing and able to complete contract - Entitlement to interest

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P G McGowan
Respondents : Ms W F Buckley

Solicitors:

Appellant: Hotchkin Hanly
Respondents : Metaxas & Hager

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

Birmingham Dudley & District Banking Co v Ross (1888) 38 Ch D 295
Cottee Dairy Products Pty Ltd v Minad Pty Ltd (1997) 8 BPR 15,611; [1998] ANZ ConvR 219
D'arcy v Burelli Investments Pty Ltd (1987) 8 NSWLR 317
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Empire Securities Pty Ltd v Miocevich [2004] WASC 118
Geita Sebea v Territory of Papua (1941) 67 CLR 544
Harmer v Jumbil (Nigeria) Tin Areas Ltd [1921] 1Ch 200
Hawkins v Farley [1997] 2 Qd R 361
Mancetter Developments Ltd v Garmanson Ltd [1986] 1 QB 1212
Meux v Jacobs (1875) LR 7 HL 481
Nelson v Walker (1910) 10 CLR 560
Palmer v Fletcher (1663) 1 Lev 122; 83 R 329
Poole's Case (1703) 1 Salk 368
Re De Falbe; Ward v Taylor [1901] 1Ch 523
Smith v City Petroleum Co Ltd [1940] 1 All ER 260
Wheeldon v Burrows (1879) 12 Ch D 31

PULLIN JA: EM Heenan AJA has set out the facts. I agree with his Honour that the reference to the colorbond shed was a reference to the removable components of the shed and not to the concrete slab or footings. The appellant has not revealed any error in the trial judge's reasons. As a result, both grounds of appeal must fail and I agree with EM Heenan AJA that the appeal must be dismissed.
MILLER JA: I have had the opportunity of reading in draft the reasons of EM Heenan AJA. I agree that the appeal should be dismissed for the reasons given by his Honour.
EM HEENAN AJA: This is an appeal from the judgment of the District Court of Western Australia entered on 27 October 2006 by which…

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: [2008] WASCA 52
Decision Date: 4 MARCH 2008

CaseChat Overview and Summary

Empire Securities Pty Ltd brought proceedings against Miocevich regarding the sale of a property. The contract of sale required the vendors to remove a shed before settlement, which was deemed a fixture. However, the shed was removed, but the concrete floor was left in situ. The dispute centred on whether the vendors complied with the contract, if they were entitled to interest for the purchaser's delay in settling, and if the vendors were ready, willing, and able to complete the contract at all material times.

The central legal issues were whether the vendors' actions constituted compliance with the contract's requirement to remove the shed, whether the vendors were entitled to interest under the contract for the purchaser's delay in settling, and if the vendors were ready, willing, and able to complete the contract at all material times. The court had to determine whether the vendors' failure to remove the concrete floor entirely constituted a breach of the contract and if this justified the purchaser's delay in settling.

The court found that the vendors' removal of the shed, while leaving the concrete floor in situ, did not constitute full compliance with the contract. However, the court held that the vendors were ready, willing, and able to complete the contract. The purchaser's delay in settling did not absolve them of their obligations, and the vendors were entitled to interest under the contract for this delay. The court dismissed the appeal, upholding the lower court's decision that the vendors were entitled to interest for the purchaser's delay in settling.

The final orders of the court were to dismiss the appeal, affirming the lower court's decision that the vendors were entitled to interest for the purchaser's delay in settling the sale of the property.

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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