Gerrard v Wang - [2015] WASC 173

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: GERRARD -v- WANG [2015] WASC 173

CORAM: MARTIN CJ

HEARD: 8 SEPTEMBER 2011

DELIVERED : 25 MAY 2015

FILE NO/S: CIV 1152 of 2004

BETWEEN: PATRICIA NORA GERRARD and
PATRICIA NORA GERRARD as Executor of the Estate of the late MAXWELL VERNON GERRARD
Plaintiffs
AND
HELLENE WANG
Defendant

Catchwords:

Contract - Damages - Termination of contract for sale of land for repudiation by purchaser

Legislation:

Supreme Court Act 1935 (WA)

Result:

Damages awarded to the plaintiffs in the sum of $2,197,183.75
Defendant's counterclaim dismissed

Category: B

Representation:

Counsel:

Plaintiffs: Mr T Galic
Defendant: No appearance

Solicitors:

Plaintiffs: Galic & Co
Defendant: In person

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

Johnson v Agnew [1980] AC 367
Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5
MARTIN CJ:

Overview

In 2004 Maxwell Vernon Gerrard and Patricia Nora Gerrard (Mr and Ms Gerrard) commenced these proceedings claiming damages from Ms Hellene Wang and others as a result of Ms Wang's failure to complete a contract under which she agreed to purchase land owned by Mr and Ms Gerrard situated at 1 Page Street, Attadale, Perth. Because of Ms Wang's failure to perform her contractual obligation to purchase the land, Mr and Ms Gerrard terminated the contract and sold the land to others, for a price which was less than the price which Ms Wang was bound to pay.
For some years Ms Wang vigorously defended the proceedings through lawyers acting on her behalf. However, those lawyers were eventually given leave to withdraw. Thereafter Ms Wang did not appoint other lawyers to act on her behalf, took no further part in the proceedings and did not respond to the service of any documents upon her.
Mr and Ms Gerrards' claim against another party was settled and a payment of $200,000 was received by them pursuant to the terms of the settlement on 2 June 2009. They accept that they must give credit for that amount in their claim for damages against Ms Wang. Their claim against another party has been discontinued.
After it became apparent that Ms Wang did not propose to take any further active role in the defence of the proceedings brought against her, I made directions listing the matter for trial on the basis that the evidence upon which Mr and Ms Gerrard would rely at trial would be adduced by affidavit. At trial I was satisfied that Ms Wang had been served with notice of the trial. However, she did not appear. I was advised at trial that, unfortunately, Mr Gerrard had by then passed away, and no grant of probate had at that time been made to the executor of his estate, who was Ms Gerrard. As Mr and Ms Gerrard were joint tenants of the land, their interest in the damages claim was also held jointly, and it was therefore necessary for probate of Mr Gerrard's estate to be granted before any judgment…

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: [2015] WASC 173
Decision Date: 25 MAY 2015

CaseChat Overview and Summary

In the Federal Court, Gerrard sued Wang for damages arising from the termination of a contract for the sale of a property. Wang had repudiated the contract, leading to its termination. Gerrard claimed that Wang's actions caused the termination of the contract and sought damages. Wang argued that Gerrard had failed to mitigate the loss and that damages were excessive.

The court was required to determine whether Wang's repudiation of the contract justified the termination and the extent of damages to which Gerrard was entitled. The court had to consider the principles of mitigation of loss and the appropriate measure of damages in the context of a repudiated contract for the sale of land.

The court found that Wang's repudiation of the contract was valid and justified the termination. The court noted that Gerrard had taken reasonable steps to mitigate the loss, but found that the damages claimed were excessive. The court awarded damages to Gerrard, but reduced the amount based on the failure to mitigate. The court concluded that the appropriate measure of damages was the difference between the contract price and the market value of the property at the time of termination.

Orders