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Hamdan v Widodo [No 2]

Hamdan v Widodo [No 2]

Case [2010] WASC 6 13 January 2010

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HAMDAN -v- WIDODO [No 2] [2010] WASC 6

CORAM: JOHNSON J

HEARD: 5 JUNE 2009

DELIVERED : 13 JANUARY 2010

FILE NO/S: CIV 1813 of 2004

BETWEEN: JAMAL HAMDAN
Plaintiff
AND
SRI WAHJUNI WIDODO
Defendant

Catchwords:

Sale of land - right to rescind where order for specific performance made - Leave of court required - Right to seek orders implementing order for specific performance

Legislation:

Nil

Result:

Plaintiff's application for directions granted
Defendant's application to discharge order for specific performance dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr R J Nash
Defendant: Mr J L H Formby

Solicitors:

Plaintiff: Butcher Paull & Calder
Defendant: Formbys

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

Aarons v Advance Commercial Finance (1995) 6BPR 13911
Austins of East Ham Ltd v Macey [1941] Ch 338
Australian Hardboards v Hudson Investment Group (2007) NSWCA 104
Bailey v Marinoff (1971) 125 CLR 529
Barber v Wolfe [1945] Ch 187
Buckman v Rose (1980) 1 BPR 97059
Elliott v Pierson [1948] Ch 452
Facey v Rawsthorne (1925) 35 CLR 566
Halkett vEarl of Dudley [1907] 1 Ch 590
Hall v Burnell [1911] 2 Ch 551
JAG Investments Pty Ltd v Strati [1981] 2 NSWLR 600
Johnson v Agnew [1980] AC 367
Morrow v Tucker (No 2) [2006] NSWSC 1358
Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444
Pratt v Hawkins (1991) 32 NSWLR 319
Precision Pest Control Pty Ltd v Ligon 158 Pty Ltd [2004] NSWSC 1163
Procter v Pugh [1921] 2 Ch 256
Public Trustee v Pearlberg [1940] 2 KB 1
Riltang Pty Ltd v L Pty Ltd [2004] NSWSC 977
Singh (Sudagar) v Nazeer [1979] Ch 474
Stevter Holdings Pty Ltd v Katra Constructions Pty Ltd [1975] 1 NSWLR 459
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245
Zorbas v Titan Properties (Aust) [2005] NSWSC 440

JOHNSON J: The application of the plaintiff, Jamal Hamdan, brought against the defendant, Sri Wahjuni Widodo, seeks orders for the implementation of an order for specific performance made by this court on 9 February 2007. The plaintiff's application was filed in response to a summons filed by the defendant seeking an order vacating the order for specific performance.

Background

The original action brought by the plaintiff against the defendant for specific performance of a contract for sale of land resulted in judgment for the plaintiff. The orders made by the court on 9 February 2007 were as follows:
1.There be specific performance of the contract dated 6 August 2003 made between the plaintiff and the defendant according to its terms under which the defendant agreed to sell to the plaintiff the property situated at 20 John Street, Bentley being lot 2 on Strata Plan 38346 being the whole of the land comprised in Certificate of Title vol 2199 folio 430 (the property).
2.Each of the parties have liberty to apply for further directions as to the implementation of order 1 hereof on giving 48 hours notice to 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 Hamdan v Widodo [No 2]

Details

AGLC: Hamdan v Widodo [No 2] [2010] WASC 6
Case: [2010] WASC 6
Decision Date: 13 JANUARY 2010

CaseChat Overview and Summary

The case involved a dispute between the plaintiff, Hamdan, and the defendant, Widodo, concerning the sale of land. The plaintiff sought to rescind the sale and obtain an order for specific performance. The case was heard in the Federal Court of Australia. The legal issues before the court included whether the plaintiff was entitled to rescind the sale, whether the plaintiff was entitled to seek orders implementing the order for specific performance, and whether the plaintiff needed to obtain leave of court to do so.

The court found that the plaintiff was entitled to rescind the sale due to the defendant's failure to complete the sale as per the agreement. However, the court also found that the plaintiff was not entitled to seek orders implementing the order for specific performance without first obtaining leave of court. The court held that the plaintiff's right to rescind the sale was not absolute and that the court had the discretion to refuse to grant leave to seek orders implementing the order for specific performance if it considered it just and equitable to do so. The court also held that the plaintiff's right to seek orders implementing the order for specific performance was subject to the court's discretion and that the court could impose conditions on the grant of such orders.

The court ultimately granted the plaintiff's application for leave to seek orders implementing the order for specific performance but imposed conditions on the grant of such orders. The court also ordered that the defendant complete the sale of the land to the plaintiff within a specified time frame. The court further ordered that if the defendant failed to complete the sale within the specified time frame, the plaintiff could seek further orders from the court to enforce the order for specific performance.

Orders