Grainger v Williams - [2000] WADC 296

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GRAINGER & ANOR -v- WILLIAMS & ORS [2000] WADC 296

CORAM: YEATS DCJ

HEARD: 4 & 31 OCTOBER 2000

DELIVERED : 17 NOVEMBER 2000

FILE NO/S: CIV 237 of 1999

BETWEEN: GEOFFREY ORMOND GRAINGER
JOAN HARRINGTON GRAINGER
Plaintiffs (Respondents)
AND
GALE CURTIS WILLIAMS
First Defendant (First Appellant)
RUTH EILEEN WILLIAMS
Second Defendant (Second Appellant)
MARK CURTIS WILLIAMS
Third Defendant (Third Appellant)

Catchwords:

Appeal from Registrar - Contract - Whether contract for sale of property and agreements to lease comprise one transaction - Whether defendants could rescind the contract for sale but keep a lease on foot - Rule in Suttor's case does not apply to the facts - Misrepresentation by the plaintiffs has not brought the contract to an end - Defendants chose to rescind the contract - Failure to complete the contract by the defendants terminated the lease - Appeal dismissed

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiffs (Respondents) : Mr M G Clay
First Defendant (First Appellant) : Mr D H Solomon &
Mr M A R Blundell

Second Defendant (Second Appellant) : Mr D H Solomon &
Mr M A R Blundell

Third Defendant (Third Appellant) : Mr D H Solomon &
Mr M A R Blundell

Solicitors:

Plaintiffs (Respondents)  :        Martin de Haas
First Defendant (First Appellant)             :        Solomon Brothers
Second Defendant (Second Appellant)     :        Solomon Brothers
Third Defendant (Third Appellant) :        Solomon Brothers

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

Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Gange v Sullivan (1966) 116 CLR 418
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Havenbar Pty Ltd v Butterfield (1974) 133 CLR 449
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

Case(s) also cited:

Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (In Liquidation) (formerly Metropolitan Engineering and Fabrications Pty Ltd) & Anor [2000] HCA 25
Breen v Williams (1996) 186 CLR 71
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Cubillo v Commonwealth (1999) 163 ALR 395
Emanuele & Anor v Australian Securities Commission & Ors (1997) 188 CLR 114
Westpac Banking Corporation v Paterson [1999] FCA 1609

YEATS DCJ: This is an appeal by the first, second and third defendants from the decision of the learned Registrar Hewitt made in chambers on 24 August 1999 and 26 August 1999 that the plaintiffs in this matter were entitled to summary judgment; the learned Registrar ordered the defendants to deliver up possession of Kent locations 1658 and 1659 to the plaintiffs within 21 days and ordered that the plaintiffs have the right on 24 hours notice to attend at Kent locations 1658 and 1659 for the purpose of carrying out an inspection. There were further orders entitling the plaintiffs to compensation and/or damages for the defendants' occupation of land, that matter to be assessed by a Judge in open court.
The jurisdiction exercised by the Registrar of the District Court in relation to interlocutory matters is a delegated jurisdiction. A condition of the delegation of this jurisdiction is the provision for a complete review de novo before a Judge of the District Court. In conducting such an appeal each party is entitled to rely on the evidence given on affidavit before the Registrar. As it is a hearing de novo this Court does not look for error on the part of the learned Registrar but considers the matter afresh for itself. (Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.)

Grounds of appeal

1.The learned Registrar erred in law in finding that the termination provision in cl 18(b) of the agreement to lease location 1659 rendered the appellants' submission "bizarre" by reason that he failed to apply the relevant principle of law, enunciated in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 and applied in numerous cases since, namely that it is only the party in default who cannot rely on such a termination provision. Accordingly if the appellants' evidence was accepted, the appellants could have relied on the condition if they so chose and the learned Registrar in holding that they could not, even if the appellants' evidence were accepted.
2.The learned Registrar erred in law, with respect to the appellants' submission that a term was to be implied and to the agreements for lease, as follows:
2.1the learned Registrar failed to take into account that the provision in cl 18(a) of the agreement to lease location 1659, providing that the two properties were to be farmed together, was a matter of fundamental importance with respect to the proper construction of both agreements to lease;
2.2the learned Registrar failed to take into account that the two agreements to lease left unresolved, in the absence of an implied term, the position:‑
2.2.1if the contract of sale of location 1658 should be terminated as a result of the respondents' default; and
2.2.2if the appellants, having the right (but not the obligation) to terminate the agreement to lease at location 1659 on 18 December 1998 if they so wished, elected not to terminate the agreement for lease location 1659;

2.3because of:‑
2.3.1the matter in ground 2.1; and
2.3.2the principle of law of general application that the respondents are not permitted to rely on their own wrongdoing,

the appropriate implied term is that both leases expire on 28 February 2000 if the appellants elected to not terminate the agreement to lease location 1659.

3.The learned Registrar erred in law in finding that the implied term could not be so implied in that he held that the two agreements for lease documents expressly addressed the possibility of the contract of sale being terminated as a result of the respondents' default and the appellants electing to remain in possession of location 1658 for the duration of the term stipulated in agreement for lease location 1659 i.e. 28 February 2000. The learned Registrar should have found that:-
3.1there was no express term dealing with that eventuality; and
3.2extrinsic evidence of the factual matrix (including, as a principal element, the terms of the contract of sale) was admissible to establish the implied term contended for by the defendants in accordance with the decision in Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, and that, if the defendants' evidence were accepted at trial, the term contended for would be established.

4.The learned Registrar erred in law in holding that the appellants' submissions, if accepted, required that the contract of sale and leases be treated as one contract, in that:-
4.1the appellants' submission was that the three written agreements were related transactions and therefore it was important that the terms of the contract of sale be taken into account as a principal element in the factual matrix in deciding whether or not the implied term in the agreement for lease existed; the appellants did not submit that the three agreements were one transaction;
4.2having correctly held that there were different parties to the contract of sale and to the lease, the learned Registrar erred in holding that the contract of sale could not be rescinded without the leases also being rescinded.
The learned Registrar should have held the contract of sale could be rescinded for misrepresentation without the leases also being rescinded, so that what was to be the position in that event fell to be determined as a matter of construction of the (express and implied terms of the) agreements for lease.

Factual background

With one minor exception the parties have not been in disagreement about the relevant facts. Those facts are found in the plaintiffs' amended statement of claim dated 9 April 1999, in the amended defence of the first and second defendant dated 24 May 1999 and in a number of affidavits including in particular the affidavit of Mark Curtis Williams sworn 25 June 1999 and the affidavit of Gale Curtis Williams sworn 25 June 1999.
The plaintiffs are the owners of Kent location 1658 and Kent location 1659. Those two locations adjoin each other and are depicted at p 6 of the book of materials supplied by the plaintiffs ("the Book"). The first and second defendants entered into negotiations with the plaintiffs for the purchase of KL 1658 and 1659. As is common in the purchase of farm properties the parties gave effect to their agreement by entering into agreements to lease each of the properties and also entering into a contract for sale of Kent location 1658. The parties to the leases were identical but the purchaser of Kent location 1658 was the Mallee Trust and not the Brown Trust which was the lessee under the agreements to lease location 1658 and location 1659.
The agreement to lease 1658 is set out at p 12 of the Book. The document appears to be executed on 18 May 1998 by the plaintiffs as lessor and the Brown Trust as lessee. The term of the lease is set out in cl 2 being a six month term commencing on 18 June 1998 and expiring on 18 December 1998. The lease contained within it in cl 4 an option to purchase in the amount of $320,000. It was a special condition of the lease of 1658 that "should the lessee obtain written approval of purchase from Kent 1658 by 18 July 1998 the rental shall be reduced by $2,000 which shall be deducted from the purchase price."
The agreement to lease location 1659 is found on pp 17 ‑ 20 of the Book. The plaintiffs agreed to lease location 1659 to the Brown Trust. The term of the lease was to be a period of 21 calendar months commencing on 1 June 1998 and expiring on 28 February 2000. This lease also contained an option to purchase in cl 4: Lot 1659 could be purchased for $680,000. Clause 18 set out five special conditions to the lease of Lot 1659:
"(a)Kent location 1659 is to be farmed in conjunction with Kent location 1658 with a total of stock numbers, over the two locations, not to exceed 5,000 DSE's.
(b)Should the purchase of Kent location 1658 not be settled by the 18th December 1998 lease of Kent location 1659 would terminate on that date. The Lessee to have the right of access to harvest any crop sown by them for the 1998/1999 season. Any crop grown by the Lessee to remain their property.
(c)The Lessor has the right to spray top pasture in consultation with the Lessee, should the purchase of Kent location 1658 by the Lessee not be finalised by the 10th July 1998.
(d)The Lessor is to have access to the locations for property maintenance and repairs during the period of Lease.
(e)Peter Grainger to have access to locations 1658 and 1659 to remove his equipment in negotiation with the Lessee."
The contract of sale was in two parts. First was the contract by offer and acceptance which is exhibited to the affidavit of Gale Curtis Williams. In its terms that offer and acceptance was made on 20 May 1998 between the plaintiffs and the Mallee Trust. It was an offer to purchase Kent location 1658 for the amount of $320,000. The offer was conditional on the purchaser obtaining sufficient finance. Under cl 17 there were a number of special conditions to the contract of sale:
"(a)All stock to be removed within 14 days of the signing of this contract by Both Parties
(b)A condition of purchase of Kent location 1658 is that the purchasers are able to Lease Kent location 1659 until 28 February 2000 and then first option to purchase Kent location 1659 for the sum of $680,000. The annual lease to be $43,825 payable monthly on the first working day of each month. Lease for Kent location 1658 to be $2,000 per month until settlement and Kent location 1659 to be $3,652 per month until settlement.
(c)Lessee/purchasers to have immediate access to both locations for spraying and cropping practices on the signing of this contract.
(d)There is to be no limitations to cropping area but no more than 5,000 DSE's.
(e)Any pasture to have a maintenance dressing of 60 kilograms of hectare of superphosphate (or equivalent) per annum.
(f)A separate lease agreement to be drawn up between both parties for each location to cover the periods nominated above."
An extension was signed to the contract of sale. The extension appears at p 23 of the Book. It appears on its face to have been executed on 20 May 1998 by the parties to the contract for sale and it granted an extension of time for the latest date of finance approval to 17 August 1998 and sale of the property to 17 August 1998.
It would appear then from the documents and from the affidavit of Mr Grainger sworn on 28 August 1999 which appears at pp 8 ‑ 10 of the Book that the leases were signed by the parties on 18 May but the contract of sale was neither completed nor signed on that day because of doubt about the name of the trust for which the purchase was to be made. Two days later on 20 May 1998 the contract of sale was signed and dated. According to Mr Grainger the extension of time form had been completed and signed on 18 May but was dated 20 May. The date of the signing of these documents is slightly in contention in that the defendants suggest the Court is not bound to accept uncritically the affidavit of Mr Grainger and refers me to a statement in Seamans Civil Procedure in Western Australia at 14.3.3:
"However the court is not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit however equivocal, lacking in precision or inconsistent with undisputed contemporary documents or other statements by the same deponent."
There is nothing in Mr Grainger's affidavit that is equivocal or lacking in precision. It is not inconsistent with the undisputed contemporary documents. In fact, on the contrary, the leases on their face are dated 18 May 1998 while the contract for the sale of location 1658 is dated 20 May 1998. That is entirely consistent with Mr Grainger's affidavit. There is no affidavit opposing this and as I understand the defendants their contention is that the dates do not really matter. They suggest that I should accept that the documents were executed at around the same time and are clearly related to each other because of the terms in each document referring to the other documents. I accept the defendants' argument that these are related documents, that is the two leases and the contract for sale. They must have been drafted at the same time but on their faces the documents would indicate that the leases were executed two days prior to the contract being executed and that is consistent with Mr Grainger's affidavit evidence and it seems a proper basis on which I should proceed. The defendants had ample opportunity to put in affidavit evidence if they wished to contest that aspect of the factual background.
The next event that occurred was on 17 August 1998 when the defendants served a notice of rescission of contract on the plaintiffs. The notice of rescission is found at pp 25 and 26 of the Book. The last paragraph of that document states:
"For the avoidance of doubt this notice does not purport to terminate an agreement to Lease dated 18 May 1998 between the Vendor and the trustee of the Brown Trust in respect of Kent location 1659 … nor an Agreement to Lease dated 18 May 1998 made between the Vendor and the trustee of the Brown Trust in respect of Kent location 1658 … .
There were no further negotiations between the parties for the sale of either Lot 1658 or 1659. Therefore on 18 December 1998 the plaintiffs considered the leases to be at an end and expected to have vacant possession of the land. The defendants resisted the plaintiffs. The defendants contend that they are entitled to remain in occupation as lessees of both Lot 1658 and Lot 1659 until 28 February 2000. There contentions are based on issues of law and it is those issues of law which will determine whether in the circumstances the plaintiffs should have summary judgment against the defendants.

Plaintiffs' reliance on the rule in Suttor's case

The defendants' case depends on the rule in Suttor's case. Suttor v Gundowda Pty Ltd (supra) arose in circumstances where under a contract for the sale of a pastoral property cl 12 provided that in the event of the consent of the treasurer not being obtained within two months of the date of the contract or within such further period as might be mutually agreed upon by the parties the contract should be deemed to be cancelled. As it developed the treasurer's consent was obtained but not within two months of the date and the vendor attempted to avoid the contract. The High Court in considering the matter said this:
"But if the stipulation be that the contract should be void on the happening of an event which one or either of them can by his own act or omission bring about, then the party, who by his own act or omission brings that event about, cannot be permitted either to insist upon the stipulation himself or to compel the other party, who is blameless to insist upon it because to permit the blameable party to do either would be to permit him to take advantage of his own wrong … .
Where the event in question is one which cannot occur without default on the part of one party to the contract, the position is clear. The provision is then construed as making the contract not void but voidable: only the party who is not in default can avoid it, and he may please himself whether he does so or not. In the present case the happening of the event (not obtaining the Treasurer's consent) may be brought about by failure on the part of either party to take certain necessary steps (provision of particulars by the vendor or making of application by the purchaser) to obtain the treasurer's consent, or it may be brought about without any default on the part of either party. In fact, although there was some argument to the contrary, it was, we think, brought about without any default on the part of either party. Such a case is perhaps not quite so clear as the simpler case where the event cannot occur without default on one side or the other but we are of opinion that the New Zealand shipping case (1919) AC 1 at p 9 requires the same construction to be given to the contract in both classes of case. The provision in question is to be construed as making the contract not void but voidable. The question of who may avoid it depends on what happens. If one party has by his default brought about the happening of the event, the other party alone has the option of avoiding the contract. If the event has happened without default on either side, then either party may avoid the contract. But neither did do so, and, if one party having a right to avoid it does not clearly exercise that right the other party may enforce the contract against him." (p 441)
The defendants contend that the contract for the sale of Lot 1658 was rescinded through no fault of their own because of the misrepresentation of the plaintiffs. In those circumstances the defendants contend that they can rescind the contract for sale but keep the leases on foot. The defendants contend that the special condition 18(b) in the lease to Lot 1659 cannot be relied upon by the plaintiffs because they are blameworthy; the defendants contend that because the contract for sale was rescinded due to the default of the plaintiffs that the related lease 1659 remains in force at their option. The result of the defendants' submission would be that although their purchase of location 1658 did not proceed nonetheless they should have the benefit of the lease covering Lot 1659, that is that lease should extend until 28 February 2000 unless they chose to avoid it.

The defendants' contention for remaining in occupation of location 1658 depends on the special condition in cl 18(a) of the lease for location 1659 providing that "Kent location 1659 is to be farmed in conjunction with Kent location 1658". The defendants contend that since that is a fundamental term of the contractual arrangements between the parties and since it has chosen not to avoid the early termination of its lease to Lot 1659, that a term should be implied into the lease for Lot 1658. That term has not been drafted by the defendants but it is contended that it to this effect:
"If the contract of sale should be terminated by reason of the respondents' default and, the appellants having the right (but not the obligation) to terminate the lease of Kent location 1659 on 18 December 1998 if they so wished, elected to not terminate the lease of Kent location 1659, both leases expire on 28 February 2000 if the appellants elected to not terminate the lease of Kent location 1659."
It can be seen from the defendants' submissions that their case depends on the rule in Suttor's case enabling them to choose to remain in possession of Lot 1659 for the full term until 28 February 2000 despite the sale of Lot 1658 not proceeding. It is only if that issue is resolved in their favour that the question of implying a term in the lease of location 1658 arises.
The rule in Suttor's case was discussed and applied in Gange v Sullivan (1966) 116 CLR 418. In Gange's case a contract for the sale of land contained a provision that the contract was subject to the purchaser obtaining development approval of the local council. The contract required the purchaser to make application for approval within seven days of the signing of the contract; in the event of the council not granting approval by 31 May 1965 the contract was to be at an end. A dispute arose between the parties as to the effect of a letter granting conditional approval. In its judgment the court discussed the legal position of the parties in the light of Suttor's case:
"Whilst the effect of a condition must in every case depend upon the language in which it is expressed and a decision upon the meaning of one condition cannot determine the meaning of a different condition, the authorities cited do show a disposition on the part of courts to treat non‑fulfilment of a condition such as that here under consideration as rendering a contract voidable rather than void in order to forestall a party to a contract from gaining some advantage from his own conduct in securing, or contributing to, the non‑fulfilment of a condition bringing the contract to an end. Accordingly, notwithstanding that the language of the condition here is susceptible of meaning that the contract came to an end if 31st May passed without the council's approval, we are prepared to treat non‑fulfilment of the condition as rendering the contract voidable rather than void. So understood, non‑fulfilment of the condition could, in the absence of default contributing thereto, be relied upon by either party as a ground for determining the contract." (Gange's case at 441 ‑ 412.)
In Gange's case the court then went on to consider the events that took place between the party's solicitors and determined that the contract was brought to an end by the vendor's positive rescission.
In Havenbar Pty Ltd v Butterfield (1974) 133 CLR 449 the rule in Suttor's case was again considered in the High Court. Havenbar involved a contract for the sale of land. Provision was made for the registration of a plan of sub‑division in respect of the land sold. The purchaser was to pay the costs of the survey with a provision that if the proposal plan is not satisfactory to both parties by 12 December 1972 then the sale shall be cancelled and all moneys refunded to the purchaser. Despite the survey plan not being agreed by 12 December 1972, the court applied Suttor's case and held that the contract was voidable and not void. The court discussed Suttor's case:
"Although these cases concerned clauses quite different in form from condition 1(d) the principle is, we think, applicable here, if the purchaser so to avoid the contract, were intentionally to refrain from having a survey plan prepared it should not be permitted to take advantage of its own default by then treating the contract as at an end; instead 'void' is treated as 'voidable' for all purposes despite the fact that this will require even an innocent party to evince an intention to avoid. … That is, we think, the proper interpretation of the present provision; non‑fulfilment of the condition that the plan should be satisfactory to both parties by the given date renders the contract voidable rather than void. If failure of satisfaction arises because the purchaser has failed to have the plan duly prepared he may not, but the vendor may, then avoid the contract. The contract will be voidable at the instance of either party if, a proposal plan having been duly prepared, either party fails to be satisfied with it by the given date and that failure of satisfaction arises because the plan does not conform to the contractual prescription of its contents to which we have already averted. In no event will the contract automatically be terminated; it will, if not avoided, continue on foot but subject always to the requirement that when a survey plan is procured it must be satisfactory to both parties in the sense that it complies with the contractual prescription." (Havenbar's case at 456 ‑ 457.)
From these authorities it can be seen that the rule in Suttor's case has the effect of rendering a contract voidable at the option of the blameless party when a condition of the contract fails because of the default of a party. The law clearly is that a person cannot rely on a condition as putting an end to his or her obligations under a contract if the non‑happening of the event was brought about by that party's own act or omission, because to allow that to happen would be to permit a person to take advantage of his or her own wrong. (Suttor'scase at 441.) The law is also clear that the effect of a condition must in every case depend upon the language in which it is expressed (Gange's case at 441.)
In this case the effect of the condition 18(b) in the lease of Lot 1659 must also be considered within the framework of the two leases and the contract for sale of Lot 1658. Both parties agree that the three documents must be read together; it is obvious from their terms that they are related agreements. When read together it is clear that it was not the intention of the parties to merely lease the lots; the leases of the lots were intended to facilitate the purchase of Lot 1658 and to put the defendants in possession of the lots for cropping purposes in a timely manner ahead of the intended purchase by 18 December 1998. The longer term of the lease of Lot 1659 was fixed to facilitate the eventual purchase of Lot 1659 and to give effect to the intention of the parties that Lot 1658 and 1659 were to be farmed in conjunction with one another (cl 18(d)). The terms of the leases and the terms of the contract of sale show the intention of the parties; the contract of sale was the principal contract while the leases were merely subsidiary, entered into to facilitate the purchase.
In these circumstances I do not believe Suttor's case should apply to the condition in cl 18(b). Without the purchase of Lot 1658 the extended lease of Lot 1659 had no purpose. This is not a case where the principle in Suttor's case applied to a condition in the contract of sale. In that contract Suttor's case would have applied. But in this case the defendants brought the contract of sale to an end by their notice of rescission. The failure to settle the purchase of Lot 1658 by 18 December 1998 terminated the lease of Lot 1659. Once the purchase failed there was no purpose to be gained by continuing the lease of Lot 1659.
It seems to me that there is another more fundamental reason Suttor's case does not apply. The defendants contend that it was the plaintiffs' default which led to the failure of the purchase of Kent location 1658 to settle by 18 December 1998. I accept as part of the agreed facts that the plaintiffs misrepresented certain matters as set out in the notice of rescission. But those misrepresentations did not bring an end to the contract of sale. An actionable misrepresentation may provide remedies of either rescission and/or damages.
"An actionable misrepresentation therefore provides the misled party with a way of escaping the contract if he or she so wishes. A choice is open to that party who must elect whether to continue with the contract or not. The contract is thus voidable at the option of the misled party. Rescission of the contract entails the restoring of the parties to the status quo prior to contract." (Cheshire & Fifoot's Law of Contract 7th Aust ed at 379.)
In this case the defendants had a choice whether to continue with the contract of sale and to purchase Lot 1658 or to rescind that contract. They choose to rescind. In these circumstances I do not believe that the rule in Suttor's case has any operation. None of the authorities I have referred to nor Suttor's case itself applies the rule in a case where the blameless party had it within his or her power to comply with the condition and chose not to. It seems to me that the defendants' choice to rescind the contract of sale was a matter for them, but, in those circumstances I do not believe the rule in Suttor's case can have any operation. It was not the plaintiffs' misrepresentations which led to the sale of Kent location 1658 failing to settle by 18 December 1998; it was the defendants' choice to rescind the contract of sale that ended the contract.
The rule in Suttor's case is intended to protect blameless parties where the intentional conduct of the other party to a contract leads to the contract coming to an end. The rule was intended to protect the blameless party to ensure that the blameworthy party did not benefit from its wrongdoing. In this case the blameless party, that is the defendants required no protection. They had it within their own hands to determine whether the contract settled by 18 December or not. The defendants cannot have it both ways. By choosing to rescind the contract of sale they cannot blame the failure to settle on the plaintiffs The defendants made that choice and the rule in Suttor's case has no application.
If the defendants' lease of Lot 1659 ended on 18 December 1998 as I find as a matter of law it must have done, there is no basis for the defendants' contentions regarding the lease of Lot 1658. In its clear terms that lease ended on 18 December 1998.

Summary judgment

The power to order summary judgment must be exercised with "exception caution" and "should never be exercised unless it is clear that there is no real question to be tried". (Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99.) In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128 ‑ 130 Barwick CJ said:
"The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. … Great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."
In this case it has taken many hours of submissions to put before the Court all the facts and materials on which the plaintiffs' case depends. Because the rule in Suttor's case has no application to these facts I am satisfied that there is no real question to be tried and that the plaintiffs should have summary judgment in their action for possession of Lots 1658 and 1659. There will need to be a further hearing on the issue of damages.
For these reasons the appeal is dismissed.