Legal Research
Cases
Hearse v Pallister

Hearse v Pallister

Case [2009] NSWSC 807 14 August 2009

Applications to Set Aside

Civil Litigation & Procedure

Property Law

No judgment structure available for this case.

Type to search within this case.

CITATION: HEARSE & ANOR v PALLISTER & ORS [2009] NSWSC 807

HEARING DATE(S): Thursday 7 and Friday 8 May 2009

JUDGMENT DATE :
14 August 2009

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: (1) Except as provided in paragraph (2) below, the application for orders sought in paragraphs 1, 2, 3 and 4 of the notice of motion filed on 26 February 2009 is dismissed.
(2) That the order made on 2 July 2008 and entered on 3 July 2008 dismissing the second cross-claim (order 5) be set aside.
(3) The applicant/first defendant is to pay the costs of the notice of motion filed on 26 February 2009.
(4) Liberty to any party to apply on short notice as to the form of orders or matters ancillary thereto.

CATCHWORDS: VENDOR – PURCHASER – Contract for Sale of Land – vendor/plaintiffs issued Notice to Complete addressed to the first and second defendants as purchasers – failure to complete purchase on specified date – notice of rescission by vendors’ solicitors – proceedings by vendors for breach of hearing – no attendance by either first or second defendant at hearing – orders made against them include order for damages in favour of the plaintiff – PRACTICE and principles – applications to set aside orders – discretionary power – relevant matters – successful application by second defendant to set aside judgments and orders – subsequent application by first defendant to set aside judgments and orders – on basis of an arguable defence that Notice to Complete involved and of no effect being addressed to both first and second defendants when second defendant had made out arguable defence that she was never a party to the contract – on the application held no arguable case – principles concerning the form and efficacy of Notices to Complete considered – application to set aside judgments and orders refused but order dismissing second cross-claim by first defendant against former solicitors set aside

LEGISLATION CITED: Civil Procedure Act 2005
Duties Act 1997

CASES CITED: American Home Assurance Co v Ampol Refineries Limited (1987) 10 NSWLR 13
Baker v Furlong (1891) 2 Ch D 172
Balog v Crestani (1975) 132 CLR 289
Banque Commerciale SA, En Liq v Akhil Holdings Limited (1990) 169 CLR 293
Bava Holdings Pty Limited v Pando Holdings Pty Limited (1998) 8 BPR 16,295
Bomanite Pty Limited v Slatex Corp Australia Pty Limited (1991) 32 FCR 379
Commercial Union Assurance Co of Australia Limited v Ferrcom Pty Limited (1991) 22 NSWLR 389
Dawson (1941) 41 SR(NSW) 295
Evans v Bartlam [1937] AC 473
Fekala Pty Limited v Castle Constructions Pty Limited [2002] NSWCA 297
GE Commercial Finance Australia Limited v Meredith [2009] NSWSC 327
Grundt v Great Boulder Pty Limited (1937) 59 CLR 641
Hearse & Anor v Pallister & Ors [2009] NSWSC 406
Kingdon v Kirk (1887) 37 Ch D 141
Laurinda Pty Limited v Capalaba Park Shopping Centre Pty Limited (1989) 166 CLR 623
Narayan v Swaleh [2005] NSWSC 1248
Ng…

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 Hearse v Pallister

Details

AGLC: Hearse v Pallister [2009] NSWSC 807
Case: [2009] NSWSC 807
Decision Date: 14 August 2009

CaseChat Overview and Summary

In the matter of Hearse v Pallister, the plaintiffs, who were vendors, initiated proceedings against the first and second defendants, the purchasers, for breach of contract. The dispute arose after the vendors issued a Notice to Complete, requiring the purchasers to complete the purchase of the property by a specified date. When the purchasers failed to complete, the vendors issued a notice of rescission through their solicitors. The vendors subsequently brought proceedings for breach of contract, and orders were made against the purchasers, including an order for damages in favour of the vendors. However, neither of the purchasers attended the hearing, resulting in orders being made against them in their absence.

The legal issues before the court involved the enforceability of the Notice to Complete and the validity of the orders made against the purchasers. The second defendant sought to set aside the judgments and orders on the grounds that the Notice to Complete was addressed to both purchasers, and she had an arguable defence that she was never a party to the contract. The first defendant later made a similar application, arguing that the Notice to Complete was of no effect because it was addressed to both purchasers when there was an arguable case that the second defendant was not a party to the contract.

The court considered the principles concerning the form and efficacy of Notices to Complete and determined that the second defendant's application to set aside the judgments and orders was successful. However, the first defendant's subsequent application was dismissed, as the court found that there was no arguable case that the Notice to Complete was of no effect. The court refused to set aside the judgments and orders against the first defendant but did set aside the order dismissing the second cross-claim by the first defendant against their former solicitors.

Orders