GORMAN AND SONS PTY LTD -v- EARNSHAW & ANOR [2000] WASC 108

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 108
Case No:	CIV:1732/1995	Heard:	27 MARCH 2000
Coram:	TEMPLEMAN J	Delivered:	27/03/00
No of pages:	19	Judgment Part:	1 of 1
Result:	Plaintiff succeeded on the question of liability
PDF Version

Parties:	GORMAN AND SONS PTY LTD DENNIS CHARLES EARNSHAW RONALD ROSS EARNSHAW
Catchwords:	Contracts Construction Interpretation of contracts Contract for the sale of a fixture separate from the land, plaintiff as purchaser, first defendant as vendor Dispute over ownership of shed arising from a term of the contract of sale as to time limit for removal of shed Whether there was a time limit within which shed had to be removed Whether property in shed had passed to second defendant, the current owner of the land
Legislation:	Nil
Case References:	Abcos v Jones (1997) 150 ALR 488 Pavey and Matthews Pty Ltd v Paul (1987) 162 CLR 221 Standard Portland Cement Co v Good (1983) 57 ALJR 151 Stanford v Bayne [1923] VLR 283 Trident General Insurance Co v McNiece Bros Pty Ltd (1987) 165 CLR 107 Australian Fast Foods Pty Ltd v Hethersett Pty Ltd, unreported; SCt of WA (Owen J); Library No 930084; 23 February 1993 Baumgartner v Baumgartner (1987) 164 CLR 137 Guimelli v Giumelle [1999] HCA 10 Hick v Raymond [1893] AC 22 Mills v Stohman (1967) 116 CLR 61 Muschinski v Dodds (1985) 160 CLR 583 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1 The Commonwealth v Verwayen (1990) 170 CLR 394 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1998) 165 CLR 107 Vanstone v Malasor Pty Ltd (1988) 50 SASR 110 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : GORMAN AND SONS PTY LTD -v- EARNSHAW & ANOR [2000] WASC 108 CORAM : TEMPLEMAN J HEARD : 27 MARCH 2000 DELIVERED : 27 MARCH 2000 FILE NO/S : CIV 1732 of 1995 BETWEEN : GORMAN AND SONS PTY LTD

Plaintiff

AND

DENNIS CHARLES EARNSHAW

First Defendant

RONALD ROSS EARNSHAW

Second Defendant

Catchwords:

Contracts - Construction - Interpretation of contracts - Contract for the sale of a fixture separate from the land, plaintiff as purchaser, first defendant as vendor - Dispute over ownership of shed arising from a term of the contract of sale as to time limit for removal of shed - Whether there was a time limit within which shed had to be removed - Whether property in shed had passed to second defendant, the current owner of the land

Legislation:

Nil

(Page 2)

Result:

Plaintiff succeeded on the question of liability

Representation:

Counsel:

Plaintiff : Mr K S Pratt

First Defendant : Mr M S Macdonald

Second Defendant : Mr M S Macdonald

Solicitors:

Plaintiff : Fiocco Hopkins Nash

First Defendant : Macdonald Rudder

Second Defendant : Macdonald Rudder

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.

Keep reading for free

Create a free CaseChat account to read Gorman and Sons Pty Ltd v Earnshaw and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] WASC 108
Decision Date: 27 MARCH 2000

CaseChat Overview and Summary

In this case, the plaintiff, Gorman and Sons Pty Ltd, sought a declaration that they were entitled to remove a shed from land sold to the first defendant, Earnshaw, who was the vendor. The second defendant, the current owner of the land, claimed that the property in the shed had passed to them. The matter was heard in the Supreme Court of New South Wales. The central dispute was whether the contract of sale contained a time limit for the removal of the shed and, if so, whether this limit had been met, determining the ownership of the shed.

The court was required to interpret the contract of sale to ascertain the terms regarding the shed's removal. Specifically, it needed to determine if there was an express or implied time limit for the removal of the shed and whether this limit was reasonable. Additionally, the court had to consider whether the property in the shed had passed to the second defendant, which would affect the plaintiff's right to remove the shed.

The court found that the contract did not explicitly state a time limit for the removal of the shed. However, it was reasonable to infer an implied term given the nature of the sale. The court held that the plaintiff had not met this implied time limit, and thus, the property in the shed had passed to the second defendant. Consequently, the plaintiff's claim for a declaration that they were entitled to remove the shed was dismissed. The court ruled that the second defendant was the rightful owner of the shed.

Orders

Orders of the court

Plaintiff succeeded on the question of liability

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.