Hall v Foster - [2011] NSWSC 295

Supreme Court

New South Wales

Medium Neutral Citation: Hall v Foster [2011] NSWSC 295
Hearing dates: 28 February, 1, 2 and 3 March 2011
Decision date: 15 April 2011
Jurisdiction: Equity Division
Before: Tamberlin AJ
Decision:
1. Directs the parties to bring in short minutes of order to give effect to these reasons.
2. Orders the cross-claim be dismissed with costs.

Catchwords:
CONTRACT - sale of land - completion of contract conditional on registration of plan of subdivision - condition not satisfied -whether vendor fulfilled contractual requirement to use best reasonable endeavours to satisfy condition.

CONTRACT - best reasonable endeavours clause; meaning of - onus of proof.
CONTRACT - termination - rescission - whether contract validly rescinded for failure of condition.
Legislation Cited: Conveyancing Act 1919 (NSW), s 93(1)
Cases Cited: Earle Cameron (Industrial) Pty Ltd v Comprador Properties Pty Ltd (1987) 3 BPR 9657
Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135
IBM United Kingdom Ltd v Rockware Glass Ltd [1980] FSR 335
Sargent v ASL Developments Ltd [1974] HCA 40; (1974) 131 CLR 634
Strati v Jag Investments Pty Ltd (1980) 1 BPR 9600
Wardy v Hardy [2002] NSWCA 215
Yeung v Desnor Pty Ltd (1989) 5 BPR 11,343
Texts Cited: Peter Butt, The Standard Contract for Sale of Land in New South Wales (1998, 2nd ed)
Category: Principal judgment
Parties: Julian Russell Hall (First Plaintiff)
Emily Louise Hall (Second Plaintiff)
Ronald William Foster (First Defendant)
Heidi Marie Foster (Second Defendant)
Representation: Counsel:
D H Murr SC with him J B Conomy (Plaintiffs)
In Person (Defendants)
Solicitors:
Maguire & McInerney (Plaintiffs)
In Person (Defendants)

File Number(s): 2008/281699

Judgment

This case concerns the rights of parties under a Contract for the Sale of land at Mount Kembla made on 17 October 2000 between the plaintiffs as purchasers and the defendants as vendors. The land is Lot 2 in a plan annexed to the contract in a proposed subdivision at Araluen Avenue, Mount Kembla in the Local Government Area of the City of Wollongong. The proposed Lot 2 has an area of 2.585 hectares and Lot 1 in the proposed subdivision has an area of 40 hectares. The sale included a rural dwelling erected some time after 1984 to which extensions were made after July 1995.

When the matter came on for hearing on 28 February 2011 an application was made to appoint the first defendant, Mr Roland Foster, to represent the estate of his mother, the second defendant, who died in November 2010. After considering the evidence and hearing submissions on the following day, I made an order appointing the first defendant to represent the estate of his mother in circumstances where, although the mother had left a will, probate had not yet been granted.

Under the applicable planning legislation, registration of the subdivision plan required development consent from Wollongong City Council (the Council) which was obtained on 9 April 2001.

Special condition 3 of the contract provided that the sale was conditional upon 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 Hall v Foster

Details

AGLC: Hall v Foster [2011] NSWSC 295
Case: [2011] NSWSC 295
Decision Date: 15 April 2011

CaseChat Overview and Summary

In the matter of Hall v Foster, the parties were engaged in a dispute over the sale of land. The respondent, Foster, agreed to sell a property to the appellant, Hall, subject to the condition that a plan of subdivision be registered. The appellant was unable to complete the sale as the condition was not satisfied, and Foster failed to use reasonable endeavours to ensure the condition was met. The case was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether Foster had fulfilled the contractual obligation to use their best reasonable endeavours to satisfy the condition precedent, and whether the contract was validly rescinded due to the failure of the condition.

The court examined the meaning and application of the best reasonable endeavours clause in the context of the contract. It was determined that the onus of proof lay on the party asserting that the clause had been satisfied. The court found that Foster had not met their obligation to use their best reasonable endeavours to register the plan of subdivision. Consequently, the condition precedent was not satisfied, and the appellant was not required to complete the sale. The court further held that the contract was not validly rescinded due to the failure of the condition, as the condition was not satisfied through no fault of the appellant.

The court's reasoning was based on the terms of the contract and the applicable legal principles. It was established that Foster had not acted in accordance with the best reasonable endeavours clause, and the appellant was therefore not obligated to complete the sale. The court's decision resulted in the appellant not being required to purchase the property, and the contract remaining in effect. The court's final orders reflected the determination that the condition precedent had not been satisfied and that the contract was not validly rescinded.

Orders