Gaggin v Lemari - [2000] NSWSC 856

Reported Decision: [2000] 10 BPR 18,381
(2001) NSW ConvR 56-002

New South Wales

Supreme Court

CITATION: Gaggin v Lemari [2000] NSWSC 856

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 3167/2000

HEARING DATE(S): 08/08/2000

JUDGMENT DATE: 8 August 2000

PARTIES :

Janelle Mary Gaggin (P1)
Harry Thomas Johnson (P2)
Russell Paul Lemari (D1)
Golden Key Real Estate Pty Ltd t/as Richardson & Wrench Strathfield (D2)
Westpac Banking Corporation (D3)

JUDGMENT OF: Young J

COUNSEL : P Walsh (P)
D R Pritchard (D3)

SOLICITORS: Paton Lawyers (P)
Henry Davis York (D3)

CATCHWORDS: CONVEYANCING [67]- Contract for sale- 1996 edition cl 20.6.3- Insufficient to authorise summons to be served on solicitor named in contract.

DECISION: See para 12

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG J

TUESDAY 8 AUGUST 2000
3167/2000 - GAGGIN v LEMARI
JUDGMENT
1    HIS HONOUR: These are proceedings brought by the vendors of a property at Strathfield against the purchaser for a declaration that the contract for sale has been terminated and that the deposit has been forfeited.
2    The contract was entered into in the 1996 edition of the standard form on 18 February 2000. The purchase price was $750,000 and a deposit of $75,000 was paid by the first defendant, the purchaser, to the agent, Richardson & Wrench at Strathfield. The contract nominated the completion date as the 42nd day after the date of the contract, which was 31 March 2000.
3    The purchaser's solicitors asked for requisitions on title shortly after exchange and these were answered on 28 February 2000. There was no demur to any of the answers. A draft transfer was signed and the vendors appear to have done everything necessary to arrange for completion.
4    Shortly before 31 March 2000 the vendors' solicitors spoke to the purchaser’s solicitors nominating a place for settlement. There were then telephone conversations between the solicitors to the effect that the purchaser’s money had been frozen by court order and he could not complete.
5    On 3 April 2000, pursuant to the authority given by clause 15 of the contract, the plaintiffs issued a notice to complete. This was a fourteen or fifteen day notice. Additional clause 31 of the contract provided for a fourteen day notice.
6    The vendors' solicitors again fixed a time and place for completion on 18 April 2000. During the conversation between the solicitors it was made clear that the purchaser was not able to complete. On 18 May 2000 the vendors terminated the contract.
7    The current summons was issued on 12 July 2000.
8    The matter has been listed today along with three other sets of proceedings affecting the first defendant. In those other proceedings a solicitor appeared for the first defendant. No solicitor appears for the first defendant in the current proceedings. However, it is quite clear from:

(a) the affidavit of Keith Williams, sworn 1 August 2000, paragraph 25; and
(b) the fact that the solicitor for the first defendant was present in court when…

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: [2000] NSWSC 856
Decision Date: 8 August 2000

CaseChat Overview and Summary

The dispute before the court involved Gaggin, the plaintiff, and Lemari, the defendant. The plaintiff sought to enforce a contract for the sale of land, specifically challenging the defendant’s refusal to proceed with the sale. The case was heard in the Supreme Court of New South Wales. The primary issue was whether a summons could be served on the defendant's solicitor, who was named in the contract for sale, without the defendant's express consent. This question arose due to the specific wording of the contract, which referenced clause 20.6.3 of the 1996 edition of the Conveyancing Act.

The court had to determine whether the clause in question authorised the plaintiff to serve the summons on the defendant's solicitor. The plaintiff argued that the clause allowed for the service of the summons on the solicitor, while the defendant contended that the clause did not explicitly provide such authorisation. The court considered the wording of the clause and whether it was sufficient to imply such authorisation. The defendant also raised concerns about the fairness and potential implications of such an interpretation.

After careful examination, the court concluded that the clause did not sufficiently authorise the service of summons on the solicitor. The court held that there was no express or implied authority in the clause that would allow such a service without the defendant's consent. Therefore, the plaintiff's application to serve the summons on the defendant's solicitor was dismissed. The court's decision emphasised the importance of clear and explicit language in legal documents to avoid ambiguity and potential disputes.

Orders