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Grubb v Toomey

Grubb v Toomey

Case [2003] TASSC 131 3 December 2003

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[2003] TASSC 131

CITATION: Grubb v Toomey [2003] TASSC 131

PARTIES:  GRUBB, Andrew James
  v
  TOOMEY, Gary Norman

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M128/2003
DELIVERED ON:  3 December 2003
DELIVERED AT:  Hobart
HEARING DATES:  12 November 2003
JUDGMENT OF:  Slicer J

CATCHWORDS:

Contract - General contractual principles - Construction and interpretation of contracts - Implied terms - Generally - Business efficacy - Vendor of land must permit access for the purpose of valuation.

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 64 ALR 481, applied.
National Mutual Life Association of Australasia Limited v Chris Poulson Insurance Agencies Pty Ltd (No 4) 11/1998; Chris Poulson Insurance Agencies Pty Ltd v National Mutual Life Association of Australasia Limited 40/1999, considered.
Conveyancing and Law of Property Act 1884 (Tas), s39.
Aust Dig Contract [105]

REPRESENTATION:

Counsel:
             Applicant:  D M Rees
             Respondent:  P G J Zeeman
Solicitors:
             Applicant:  E R Henry Wherrett & Benjamin
             Respondent:  Murdoch Clarke

Judgment Number: [2003] TASSC 131
Number of Paragraphs: 29

Serial No 131/2003
File No M128/2003

ANDREW JAMES GRUBB v GARY NORMAN TOOMEY

REASONS FOR JUDGMENT SLICER J

3 December 2003

The applicant seeks resolution of a dispute with the respondent concerning a contract for the sale of land in accordance with the Conveyancing and Law of Property Act 1884 ("the Act"), s39, which relevantly provides:

"39 ¾ A vendor or purchaser of real or leasehold estate, or their representatives respectively, may at any time apply in a summary way to a judge in chambers in respect of any requisitions or objections, or any claim for compensation, or any other question arising out of or connected with the contract, not being a question affecting the existence or validity of the contract, and the judge shall make such order upon the application as to him shall appear just, and shall order how and by whom all or any of the costs of and incident to the application shall be borne and paid."

The provision permits the consideration of the terms of a valid contract, including one which a party contends has been terminated. It is similar to the Property Law Act 1974 (Qld), s70, the impact of which was considered by the Queensland Court of Appeal in Imperial Bros Pty Ltd v Ronim Pty Ltd [1998] QCA 444 in which the court stated at 5:

"… that the words of the exception are directed to excluding recourse to the provision where there is an issue as to whether or not there was ever a valid contract, and not to a situation where one party contends that a contract, accepted as valid originally, has subsequently been terminated. That was the approach taken on comparable legislation in Nowak v Linton [1960] WAR 2, 3 per Virtue J, and in Re MacDonald [1989] 2 Qd R. 29, 33 per Dowsett J."

(See also In…

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 Grubb v Toomey

Details

AGLC: Grubb v Toomey [2003] TASSC 131
Case: [2003] TASSC 131
Decision Date: 3 December 2003

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Andrew James Grubb brought an action against Gary Norman Toomey, seeking to resolve a dispute concerning the sale of land pursuant to the Conveyancing and Law of Property Act 1884. Specifically, the applicant sought a declaration that an implied term existed in the contract of sale, which required the vendor to allow a valuer access to the property for the purpose of a valuation. The applicant also sought an order that the vendor allow a valuer access to the property within 14 days and an order extending the time for the applicant to comply with the condition precedent in the contract.

The court found that the contract contained a term which required the applicant to obtain finance for the amount of $85,000 within 14 days of the date of the contract. The contract was to be completed within 30 days of the confirmation of the "finance" clause. The applicant applied to Connect Credit Union for a loan of money to enable him to complete the purchase. The loan was approved, but subject to an inspection of the property by Connect Credit Union's property valuer. However, the respondent refused the valuer access to the property. The court found that the respondent had prevented access to the property within the time permitted to the applicant to obtain finance.

The court found that it was necessary to give business efficacy to the contract and that it was so obvious that it went without saying that the vendor must allow a valuer, on behalf of the purchaser's financier, access to the property in order to allow the purchaser to attempt to obtain finance as required by clause 4.1(b) of the contract. The court found that the term was necessary to make the contract work and was so obvious that it went without saying. The court also found that the term was not in conflict with any express term of the contract.

The court declared that the contract of sale made on or about 30 May 2002 between the applicant as purchaser and the respondent as vendor for the sale and purchase of Unit 2/7 Grace Court, Glenorchy contained an implied term to the effect that, in order to facilitate the performance of the contract, the vendor must allow a valuer, on behalf of the purchaser's financier, access to the property, in order to allow the purchaser to attempt to obtain finance as required by clause 4.1(b) of the contract. The court also ordered that the respondent allow a valuer appointed on behalf of the purchaser's financier access to the property and that the time for compliance by the applicant with clause 4.1(b) of the contract be extended to 14 days as and from the date of the order.

Orders