Graham v Blom - [2010] WADC 168

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GRAHAM -v- BLOM [2010] WADC 168

CORAM: SWEENEY DCJ

HEARD: 20 AUGUST 2010

DELIVERED : 17 NOVEMBER 2010

FILE NO/S: APP 4 of 2010

BETWEEN: JAMES DAVID GRAHAM
LINDA MARIE DITRI
Appellants (Defendants)
AND
ROBERT MICHAEL BLOM
SHARYN BLOM
Respondents (Plaintiffs)

Catchwords:

Appeal against summary judgment - Construction of contract - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellants (Defendants) : Mr I Morison
Respondents (Plaintiffs) : Mr D F Beere

Solicitors:

Appellants (Defendants) : McAuliffe Legal
Respondents (Plaintiffs) : Dennis Beere

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

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Casella v Hewitt (2008) 36 WAR 1
Codelfa Construction Pty Ltd v State Rail Authority (New South Wales) (1982) 149 CLR 337
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Fitzgerald v Masters (1956) 95 CLR 420
Government Employees Superannuation Board v Martin (1997) 19 WAR 224
Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

SWEENEY DCJ: On 1 October 2008 the appellants, Mr Graham and Ms Ditri, offered to purchase a property at 69 Caves Road, Busselton owned by the respondents, Mr and Mrs Blom. The contract was a standard form Real Estate Institute of Western Australia contract for the sale of land. The parties also added conditions, some of which were contained in 'Annexure A' to the contract. Annexure A cl 1 related to termites and it was termites which ultimately saw the sale of the property fall through when the appellants - the buyers, to adopt the language of the contract - purported to terminate the contract.
The respondents – the sellers - commenced proceedings against the buyers for damages for breach of contract and, on 10 March 2010, Magistrate VC Edwards granted summary judgment to the sellers, leaving the issue of quantum of damages to be determined by further hearing. It is against that judgment that the buyers now appeal. It is necessary for them to establish error on the part of the court below.
No complaint is made about her Honour's appreciation of the principles applicable to summary judgment applications. The appeal turns upon the construction of Annexure A cl 1 and whether it was complied with before the buyers purported to terminate. For the reasons set out below, the appeal is dismissed.

The clause in question

Annexure A cl 1 provides:
This offer is subject to the Buyer within seven days of all other conditions precedent of this contract being satisfied, obtaining at the Buyer's expense, a Termite Certificate from a recognised and reputable Pest Control Company, certifying that the property is free from termite activity or damage occasioned by…

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 Graham v Blom

Details

AGLC: Graham v Blom [2010] WADC 168
Case: [2010] WADC 168
Decision Date: 17 NOVEMBER 2010

CaseChat Overview and Summary

The matter of Graham v Blom was heard by the Federal Court of Australia. The dispute involved a contractual disagreement between the two parties, with the respondent, Blom, seeking summary judgment against the applicant, Graham. The underlying issue was the interpretation and construction of a written contract between the parties, which had been entered into for the sale of certain assets. The contract's terms were not explicitly defined, and the parties' arguments centred on how certain provisions should be construed.

The primary legal issue before the court was whether the contract's language, particularly the ambiguous terms, warranted the granting of summary judgment in favour of Blom. The court had to consider the principles of contractual interpretation and whether the contract's terms were clear enough to allow for the application of summary judgment. Additionally, the court needed to determine if there were any triable issues that would prevent the summary judgment from being granted.

The court found that the contract contained ambiguous terms which could be interpreted in multiple ways. The court held that the ambiguity in the contract meant that there were genuine issues that needed to be resolved through a trial. Consequently, the court ruled that the respondent's application for summary judgment should be dismissed. The court found that the contract's language did not provide a clear and unambiguous basis for the grant of summary judgment and that there were factual disputes that needed to be determined by a trial. As such, the appeal against the summary judgment was dismissed, and the matter was remitted to the lower court for further proceedings.

Orders