Goldmaster Homes Pty Ltd v Johnson - [2004] NSWCA 144

CITATION: GOLDMASTER HOMES P/L & ANOR v JOHNSON & ORS [2004] NSWCA 144

HEARING DATE(S): 04/05/2004

JUDGMENT DATE:
4 June 2004

JUDGMENT OF: Mason P at 1; Bryson JA at 2; Stein AJA at 44;

DECISION: [2003] NSWSC 230 affirmed. Appeal dismissed with costs.

CATCHWORDS: CONTRACTS – offer and acceptance – option, first refusal – affirm finding of Brownie AJ that, on evidence of correspondence and conversation, there was no concluded contract for a right of first refusal – consideration of nature of right of first refusal and case law thereon – reject argument that should follow decisions in States of US – significance of observations in Woodroffe v. Box (1954) 92 CLR 245 and Mackay v. Wilson (1947) 47 SR NSW 315. D.

LEGISLATION CITED: Conveyancing Act 1919 Sched.3 s60

CASES CITED: Manchester Ship Canal Co v. Manchester Racecourse Co [1900] 2 Ch 352
Smith v. Morgan [1971] 1 WLR 803
Gardner v. Coutts & Co [1968] 1 WLR 173
Kellner v. Bartman (1993) 620 NE 2d 607
Abraham Investment Company v. Payne Ranch Inc. & Ors (1998) 968 SW 2d 518
Cortese & Ors v. Connors (1956) 135 NE 2d 28
DiMaria v. Michaels (1982) 455 NYS 2d 875
Tribble & Anor v. Reely & Ors (1976) 557 P 2d 813
Butler & Ors v. Richardson & Ors (1948) 60 A 2d 718
Barling & Ors v. Horn & Ors (1956) 296 SW 2d 94
Brownies Creek Collieries Inc. v. Asher Coal Mining Co. (1967) 417 SW 2d 249
Phipps v. CW Leasing Inc. (1996) 923 P 2d 863
Woodroffe v. Box (1954) 92 CLR 245
Mackay v Wilson (1947) 47 SR (NSW) 315
Smith v. Morgan [1971] 1 WLR 803

PARTIES :
Goldmaster Homes Pty Ltd and Rocky Scarcella - Appellants
Keith Norman Johnson - First Respondent
Johnson & Johnson Real Estate Pty Ltd - Second Respondent
Hills Development Corporation Pty Ltd - Third Respondent

FILE NUMBER(S): CA 40321/2003

COUNSEL: V. Gray - Appellants
F. Gleeson - Respondents

SOLICITORS: Corporate & Civil Legal - Appellants
Phillips Fox - Respondents

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 4432/1999

LOWER COURT
JUDICIAL OFFICER : Brownie AJ

40321/2003

MASON P
BRYSON JA
STEIN AJA
FRIDAY 4 JUNE 2004

GOLDMASTER HOMES P/L & ANOR v. KEITH NORMAN JOHNSON & 2 ORS

Judgment

1 MASON P: I agree with Bryson JA.

2 BRYSON JA: The appellants, plaintiffs in the Equity Division, appeal against the judgment for the defendants, now the respondents, with costs given by Brownie AJ on 25 March 2003. The proceedings were commenced in the District Court at Sydney on 18 January 1999 and later removed into the Equity Division. The appellants claimed damages for breach of a contract alleged in the following terms in para 9 of the Statement of Claim (p.4 of red appeal book):

9. By a contract made on or about 30th September 1996 (the “Contract”) between the plaintiffs or one of them and the defendants, the defendants agreed with the plaintiffs that the…

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.

Continue reading Goldmaster Homes Pty Ltd v Johnson

Details

AGLC: Goldmaster Homes Pty Ltd v Johnson [2004] NSWCA 144
Case: [2004] NSWCA 144
Decision Date: 4 June 2004

CaseChat Overview and Summary

Goldmaster Homes Pty Ltd appealed to the New South Wales Court of Appeal against a decision of Brownie AJ in the Supreme Court of New South Wales. The dispute concerned whether a concluded contract existed for a right of first refusal in relation to certain land. Goldmaster Homes argued that such a contract had been formed through a series of correspondence and conversations.

The Court of Appeal was required to determine whether the evidence established a concluded agreement for a right of first refusal. This involved considering the nature of a right of first refusal and the relevant case law, including observations from *Woodroffe v. Box* and *Mackay v. Wilson*. The court also had to assess Goldmaster Homes' argument that decisions from the United States should be followed in interpreting the agreement.

The Court of Appeal affirmed the findings of Brownie AJ, concluding that the evidence did not demonstrate a concluded contract for a right of first refusal. The judges applied established principles regarding offer and acceptance in contract formation, finding that the parties had not reached a sufficient level of agreement. The court rejected the argument to follow US case law, instead relying on Australian authorities. The appeal was dismissed with costs.

Orders

Orders of the court

[2003] NSWSC 230 affirmed. Appeal dismissed with costs.

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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CITATION:	GOLDMASTER HOMES P/L & ANOR v JOHNSON & ORS [2004] NSWCA 144
HEARING DATE(S):	04/05/2004
JUDGMENT DATE:	4 June 2004
JUDGMENT OF:	Mason P at 1; Bryson JA at 2; Stein AJA at 44;
DECISION:	[2003] NSWSC 230 affirmed. Appeal dismissed with costs.
CATCHWORDS:	CONTRACTS – offer and acceptance – option, first refusal – affirm finding of Brownie AJ that, on evidence of correspondence and conversation, there was no concluded contract for a right of first refusal – consideration of nature of right of first refusal and case law thereon – reject argument that should follow decisions in States of US – significance of observations in Woodroffe v. Box (1954) 92 CLR 245 and Mackay v. Wilson (1947) 47 SR NSW 315. D.
LEGISLATION CITED:	Conveyancing Act 1919 Sched.3 s60
CASES CITED:	Manchester Ship Canal Co v. Manchester Racecourse Co [1900] 2 Ch 352 Smith v. Morgan [1971] 1 WLR 803 Gardner v. Coutts & Co [1968] 1 WLR 173 Kellner v. Bartman (1993) 620 NE 2d 607 Abraham Investment Company v. Payne Ranch Inc. & Ors (1998) 968 SW 2d 518 Cortese & Ors v. Connors (1956) 135 NE 2d 28 DiMaria v. Michaels (1982) 455 NYS 2d 875 Tribble & Anor v. Reely & Ors (1976) 557 P 2d 813 Butler & Ors v. Richardson & Ors (1948) 60 A 2d 718 Barling & Ors v. Horn & Ors (1956) 296 SW 2d 94 Brownies Creek Collieries Inc. v. Asher Coal Mining Co. (1967) 417 SW 2d 249 Phipps v. CW Leasing Inc. (1996) 923 P 2d 863 Woodroffe v. Box (1954) 92 CLR 245 Mackay v Wilson (1947) 47 SR (NSW) 315 Smith v. Morgan [1971] 1 WLR 803
PARTIES :	Goldmaster Homes Pty Ltd and Rocky Scarcella - Appellants Keith Norman Johnson - First Respondent Johnson & Johnson Real Estate Pty Ltd - Second Respondent Hills Development Corporation Pty Ltd - Third Respondent
FILE NUMBER(S):	CA 40321/2003
COUNSEL:	V. Gray - Appellants F. Gleeson - Respondents
SOLICITORS:	Corporate & Civil Legal - Appellants Phillips Fox - Respondents

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	4432/1999
LOWER COURT JUDICIAL OFFICER :	Brownie AJ