Handley v Gunner

Case [2008] NSWCA 113



New South Wales


Court of Appeal


CITATION: HANDLEY & Anor v GUNNER [2008] NSWCA 113
HEARING DATE(S): 11 April 2008
 
JUDGMENT DATE: 

28 May 2008
JUDGMENT OF: Mason P at 1; Hodgson JA at 110; Campbell JA at 117
DECISION: Appeal upheld
CATCHWORDS: REAL PROPERTY – Easements – particular easements and rights – rights of way - CONTRACTS – General contractual principles – discharge, breach and defences to action for breach – performance – whether respondent’s obligations under deed spent – where term requiring respondent to issue transfer at request of appellant - CONTRACTS – General contractual principles – construction and interpretation of contracts – implied term – duration of contract – whether implication in contract that term to be exercised within a reasonable time – whether reasonable time had elapsed
LEGISLATION CITED: Limitation Act 1969
Suitor’s Fund Act 1951
CATEGORY: Principal judgment
CASES CITED: Bragg v Alam (1982) NSW Conv R 55-082
Bragg v Alam [1981] 1 NSWLR 668
Brambles Holdings Pty Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153
Carlton & United Breweries Ltd v Tooth & Co Ltd (Supreme Court of New South Wales, Hodgson J, 11 June 1985, unreported
Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337
Ellmore (Maitland) Pty Ltd v Tull (1995) 7 BPR 14,305
Gallagher v Rainbow (1994) 179 CLR 624
Geraghty v Russell (1874) 5 AJR 89
Hall v Busst (1960) 104 CLR 206
Maritime Services Board of NSW v Australian Shipping Commission (1991) 27 NSWLR 258
Neill v Public Trustee [1978] 2 NSWLR 65
Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635
Partridge v Preddey (1904) 4 SR (NSW) 36
Reid v Moreland Timber Co Pty Ltd [1946] HCA 48
Rudi’s Enterprises Pty Ltd v Jay (1987) 10 NSWLR 568
Short v Patrial Holdings Pty Ltd (1994) 6 BPR 13,996
Warburton v National Westminster Finance Australia Ltd (1988) 15 NSWLR 238
TEXTS CITED: JW Carter, et al, Cases and Materials on Contract Law in Australia, 5th ed (2007) LexisNexis Butterworths,
Chitty on Contracts, 29th ed (1999) Sweet & Maxwell
Voumard, The Sale of Land, 5th ed (1995) LBC Information Services
PARTIES: Neil Charles HANDLEY & Anor v Norman Henry GUNNER
FILE NUMBER(S): CA 40425/2007
COUNSEL: Appellants: J Gleeson SC/ G A Rich
Respondent: T G R Parker SC/ N J Owens
SOLICITORS: Appellants: Manion McCosker
Respondent: Beswick Solicitors
LOWER COURT JURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S): SC 3498/2006
LOWER COURT JUDICIAL OFFICER: Young CJ in Eq
LOWER COURT DATE OF DECISION: 14 June 2007
LOWER COURT MEDIUM NEUTRAL CITATION: NSWSC 601




                          CA 40425/2007

                          MASON P
                          HODGSON JA
                          CAMPBELL JA

                          Wednesday 28 May 2008
Neil Charles HANDLEY & Anor v Norman Henry GUNNER
JUDGMENT

1 MASON P: The appellants seek orders in the nature of specific performance to enforce a Deed entered into between themselves and the respondent on 28 February 1994. Their summons was dismissed…

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Handley v Gunner [2008] NSWCA 113
Case
[2008] NSWCA 113
Decision Date

CaseChat Overview and Summary

The case of *Handley v Gunner* concerned a dispute between the appellant, Handley, and the respondent, Gunner, regarding rights of way and contractual obligations. The matter came before the Court of Appeal of New South Wales.

The central legal issues before the court were whether the respondent's obligations under a deed had been discharged, specifically concerning a term that required the respondent to issue a transfer at the appellant's request. The court also had to determine whether an implied term existed within the contract that such a request must be made within a reasonable time, and if so, whether a reasonable time had elapsed.

The Court of Appeal reasoned that the obligation to issue a transfer was not spent and that the deed did not contain an implied term that the request for transfer must be made within a reasonable time. The court found that the respondent's obligations remained on foot. Consequently, the appeal was upheld.

Orders

Orders of the court

Appeal upheld

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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