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Hearse v Pallister

Hearse v Pallister

Case [2008] NSWSC 504 27 May 2008

Admissibility of Evidence

Property Law

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CITATION: HEARSE & ANOR v PALLISTER & ORS [2008] NSWSC 504
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 7, 8 November 2007

JUDGMENT DATE :
27 May 2008

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: Judgment to be entered for the plaintiffs, subject only to the form of orders to be determined on a date to be fixed.

CATCHWORDS: CONVEYANCING - Contract for sale - Purchaser failed to complete - Property resold - Liquidated damages claim under clause 9.3.1 of contract - Recovery of deficiency on resale - Recovery of reasonable costs and expenses - Awards of statutory interest on deficiency on resale and reasonable expenses recovered

LEGISLATION CITED: Civil Procedure Act 2005
Conveyancing Act 1919
Uniform Civil Procedur Rules 2005

CATEGORY: Principal judgment

CASES CITED: Advance Commercial Finance Limited v Aarons (1996) 7 BPR 14,523, BC9600180
Buchanan v Dunstan [2007] NSWSC 248
Carpenter v McGrath (1996) 40 NSWLR 39
Cox v Parker (1987) BPR 11,208, BC8700930
Degman Pty Limited (in liq) v Wright [1983] 2 NSWLR 601
Donnellan v Garlick [2006] NSWSC 132
Eighth SRJ v Merity (1997) 7 BPR 15,189, BC 9701110
Gogard Pty Limited v Satnaq Pty Limited (1999) 9 BPR 17,171, BC9908521
Jampco Pty Limited v Cameron (No 2) (1986) NSW ConvR 55,275
Rossco Developments Pty Ltd v O’Halloran (1980) 29 ACTR 1
Zografakis v McCarthy (2007) NSWSC 144

TEXTS CITED: Peter Butt: The Standard Contract for Sale of Land in NSW (1988, 2nd ed) at 482

PARTIES: Phillip Baden HEARSE & ANOR v
Mark James PALLISTER & ORS

FILE NUMBER(S): SC No 12574 of 2006

COUNSEL: P: J C Thompson
1-2D: No appearance
3-5D: G Curtin

SOLICITORS: P: Lander & Lander
1-2D: No appearance
3-5D: Henry Davis York

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

TUESDAY 27 MAY 2008

No. 12574 of 2006

PHILLIP BADEN HEARSE & ANOR v MARK JAMES PALLISTER & ORS
JUDGMENT

1 HIS HONOUR: The plaintiffs in the amended statement of claim filed on 6 July 2006 claim from the first and second defendants, damages in the amount of $790,680.82 together with interest at the rate prescribed pursuant to s.100 of the Civil Procedure Act 2005 in respect of the defendants’ failure to complete a contract of sale of land at Clontarf, Sydney. A document entitled “Pallister Claim” set out the items of claim amounting in all to the above amount. The document is MFI 2 in the present proceedings.

2 The defendants were, until 25 September 2007, represented by Somerville & Co, lawyers. Those solicitors ceased to act for them by Notice of Ceasing to Act filed on 25 September 2007. When the proceedings were listed for hearing on 7 November 2007, there was no appearance by the defendants. The hearing was adjourned on that date for a period to permit inquiries and, as necessary, evidence in order to confirm that the defendants had been informed of 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 Hearse v Pallister

Details

AGLC: Hearse v Pallister [2008] NSWSC 504
Case: [2008] NSWSC 504
Decision Date: 27 May 2008

CaseChat Overview and Summary

The matter of Hearse v Pallister involved a dispute arising from a contract for the sale of property. The purchaser, Hearse, failed to complete the purchase, resulting in the property being resold by the vendor, Pallister. Pallister sought to recover the deficiency in the resale price, liquidated damages under clause 9.3.1 of the contract, and reasonable costs and expenses incurred in relation to the resale, along with statutory interest on these amounts. The court had to determine the validity and extent of these claims.

The primary legal issues were whether the vendor could recover the shortfall from the resale price, the amount of liquidated damages payable under the contract, and the reasonableness of the costs and expenses claimed. Additionally, the court needed to decide if statutory interest was applicable to the amounts recovered.

The court found that the vendor was entitled to recover the shortfall from the resale price as it was explicitly stated in the contract. The court also upheld the claim for liquidated damages, as the contract's clause 9.3.1 was deemed a genuine pre-estimate of loss. Regarding the costs and expenses, the court found that some of the claims were reasonable and necessary, thus recoverable. Finally, the court ruled that statutory interest applied to the deficiency on resale and the reasonable costs and expenses recovered, as provided by statute.

The court ordered Hearse to pay Pallister the deficiency in the resale price, the agreed liquidated damages, the reasonable costs and expenses, and statutory interest on these amounts.

Orders