Harrington v Edwards
[2008] WASC 158
•28 JULY 2008
HARRINGTON -v- EDWARDS [2008] WASC 158
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 158 | |
| 05/08/2008 | |||
| Case No: | CIV:2259/2007 | 18 JUNE & 28 JULY 2008 | |
| Coram: | MASTER SANDERSON | 28/07/08 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Judgment entered for the plaintiff | ||
| B | |||
| PDF Version |
| Parties: | DAVID CHARLES HARRINGTON WILLIAM LEWIS HENRY EDWARDS as executor of the estate of EILEEN GLADYS MAHONEN |
Catchwords: | Practice and procedure Application for summary judgment Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
WILLIAM LEWIS HENRY EDWARDS as executor of the estate of EILEEN GLADYS MAHONEN
Defendant
Catchwords:
Practice and procedure - Application for summary judgment - Turns on own facts
Legislation:
Nil
Result:
Judgment entered for the plaintiff
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr J C Vaughan
Defendant : Mr M S Macdonald
Solicitors:
Plaintiff : Taylor Linfoot & Holmes
Defendant : Macdonald Rudder
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 MASTER SANDERSON: This was the plaintiff's application for summary judgment. The application was filed on 16 May 2008. The defendant entered an appearance to the writ on 1 April 2008. Leave was therefore required to bring the application. In part, the delay in filing the application was due to the defendant's failure to serve his appearance. In any event, at the hearing, no objection was taken to the extension of time being granted and the order was made accordingly.
2 The facts, as taken from the statement of claim and the various affidavits filed in support of the application, can be summarised as follows. On 9 February 2006, the Supreme Court of Western Australia granted probate of the last will and testament of the late Eileen Gladys Mahonen to the defendant. As at the date of her death, the deceased was the registered proprietor of the leasehold interest in respect of 98 Gunners Lane, Point Moore, Geraldton. Under the provisions of the Administration Act 1903 (WA), the deceased's leasehold interest in the land became vested in the defendant. After 9 February 2006, the defendant had the power to deal with and sell the leasehold interest.
3 By written agreement dated 24 October 2006, the defendant as seller agreed to sell to the plaintiff as buyer the leasehold interest in the land. The plaintiff paid the deposit on 24 October 2006. The sale contract incorporated the 2002 Joint Form of General Conditions for the Sale of Land. Under the terms of the sale contract, settlement was to take place on the sooner of the registration of an application by the defendant to be registered as proprietor of the leasehold interest in the land, or on 15 December 2006. It would seem that the defendant has not made an application to be registered as the proprietor of the leasehold interest. Thus, settlement should have taken place on 15 December 2006. In accordance with the terms and conditions of sale, as at the date of settlement the defendant had to provide to the plaintiff all documents necessary to allow for the transfer to be effected to the plaintiff.
4 The plaintiff has at all times been ready, willing and able to complete the transfer. The defendant has declined to settle. The plaintiff seeks judgment for specific performance to bring about completion of the transaction.
5 The plaintiff has complied with all the requirements necessary to obtain summary judgment. A statement of claim has been filed and has been verified on oath. The statement of claim is straightforward and coherent and sets up a good cause of action. That being so, the evidentiary burden passes to the defendant. He must establish that there is
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- a serious question to be tried. He is, of course, entitled to the presumption where facts are contested that those contested facts will fall in a way most favourable to him.
6 In opposition to the application, the defendant filed an affidavit sworn 5 June 2008. This affidavit was prepared by the defendant in person. Solicitors were not involved. Subsequent to the filing of that affidavit, solicitors were appointed. An affidavit of Alan McCrae Dungey (Mr Dungey) sworn 8 July 2008 was filed in opposition to the application. That affidavit requires some comment. Mr Dungey is a solicitor in Kalgoorlie. The defendant is resident in Kalgoorlie. The defendant consulted Mr Dungey on 17 June 2008. He supplied Mr Dungey with a number of papers. Among these was an application for summary judgment which was listed for hearing the following day. Mr Dungey ascertained that the defendant wished to oppose the application. However, the affidavit indicates that Mr Dungey had the greatest difficulty obtaining coherent instructions from the defendant. A statement was taken from the defendant and that now appears as annexure AMD 1 to Mr Dungey's affidavit.
7 At the commencement of the hearing, counsel for the defendant indicated that although there had been difficulty obtaining instructions from the defendant, he was satisfied that he was in a position to properly represent the defendant's interests. Counsel was clearly in the best position to make a judgment on that question and the matter proceeded accordingly. But it must be said that there is nothing in the affidavit evidence of the defendant or of Mr Dungey that gives any real indication of the basis upon which the application was opposed. The signing of the offer and acceptance has at all times been admitted. Essentially, it was counsel's submission that the background facts were such that as a matter of law there was doubt as to whether the sale contract was enforceable.
8 I will deal with each of these in turn. First, it was said that there was no offer and acceptance as between the plaintiff and the defendant because of the way that the transaction was conducted. It is the undisputed fact that the defendant was the first to sign an offer and acceptance form. That document was then passed on to the plaintiff by the defendant's agent and was signed by the plaintiff. It was said on behalf of the defendant that it was a term of the agreement that the deposit be paid within five days of acceptance. It was said that that meant within five days of the seller signing as offeree.
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9 There is no merit in this submission. It may have been slightly unusual for the defendant as the seller to sign the offer and acceptance first, but there was nothing to prevent him from doing so. Once the plaintiff signed the document, he had a certain specified period within which to pay the deposit. He did just that. There was a concluded agreement which had never 'lapsed'.
10 Second, it was said that the acceptance of the offer must be communicated to the offeree to be effective and in this case there was no such communication. But there was. Acceptance was communicated to the defendant's agent who clearly, on the facts, had express authority to receive the communication of the plaintiff's acceptance. The contract does not fail for lack of communication of acceptance of the offer.
11 The final two submissions rely on some further background facts. Some time prior to June 2006, the plaintiff had expressed an interest in purchasing the land. By letter dated 2 June 2006, the plaintiff wrote to the defendant informing him that he (the plaintiff) was interested in purchasing the land subject to the price being agreed. By letter from the defendant to the plaintiff dated 8 June 2006, the defendant, in effect, informed the plaintiff of advice he had received as to the value of the land and suggested $100,000 as the purchase price. By letter dated 20 June 2006, the plaintiff informed the defendant he was still interested in purchasing the land but wanted to discuss the matter further in early July 2006. On 14 June 2006, the defendant instructed his agents to auction the land. By letter dated 3 July 2006, the plaintiff informed the defendant that the price of $100,000 was acceptable to him and that he would arrange finance. The plaintiff then lodged a caveat over the land on the basis that the letter of 8 June 2006 was an offer to sell the land to the plaintiff for $100,000 and his letter of 3 July 2006 accepted that offer. By letter dated 5 September 2006, the plaintiff confirmed that his finance had been approved and accordingly he was able to proceed.
12 There must be real doubt as to whether or not this exchange of correspondence could amount to a binding contract for the sale of the land. The defendant obtained legal advice to the effect that there was no such contract. The advice was that an application to have the caveat removed would succeed. However, the fact that the caveat was on the land and no application was made to remove it meant that the auction sale could not take place.
13 On 14 July 2006, the plaintiff's solicitors wrote to the defendant's agent alleging that there was a contract in existence for the sale of the
(Page 6)
- land. On behalf of the defendant it is said that this representation was false. It is further said that this representation was made in trade and commerce and was misleading and deceptive and arguably led to the defendant signing the offer and acceptance document.
14 In my view, that submission cannot be made out. The defendant was in possession of advice from his own solicitors that there was no binding agreement. He was in no way compelled to sign a further offer and acceptance. He could simply have applied to the Registrar of Titles and had a 21-day notice issued. That would have resolved the matter in short order. Moreover, there is nothing in the evidence to suggest that the defendant relied upon what was said by the plaintiff's solicitors when he signed the offer and acceptance. Without evidence to that effect, there is no warrant for saying that there was reliance by the defendant on what was said by the plaintiff's solicitors and no basis to have the contract set aside on the grounds of misleading and deceptive conduct.
15 The final argument put on behalf of the defendant was that the plaintiff procured the contract by conduct that was unconscientious. It was submitted that the land was sold undervalue, that the defendant was an old man - being almost 65 years of age - and by lodging the caveat the plaintiff had applied undue pressure. In my view, none of these matters could amount to unconscientious conduct. There is simply nothing in that submission.
16 In the circumstances, then, I am satisfied that the plaintiff is entitled to an order for specific performance. At the conclusion of the hearing, I made such an order together with a costs order which finally disposed of all outstanding issues in these proceedings.
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