Hearse v Staunton - [2011] NSWCA 139

Court of Appeal

New South Wales

Case Title: Hearse v Staunton

Medium Neutral Citation: [2011] NSWCA 139

Hearing Date(s): 19 May 2011

Decision Date: 03 June 2011

Jurisdiction:

Before:
McColl JA at [1]; Young JA at [2]; Whealy JA at [9].

Decision:
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
Vendor and purchaser- husband on contract as sole purchaser- purchaser's solicitor tells vendors' solicitor that wife will be joint transferee and to alter contract- vendors' solicitor does so- wife never intends that she be party to contract- purchaser's solicitor sued for breach of warranty of authority- verdict for defendant upheld on appeal.

Legislation Cited:
Duties Act 1997, s 18

Cases Cited:
Lee v Irons [1958] VR 436
Masters v Cameron [1954] HCA 72; 91 CLR 353
Peter Warren (Properties) Pty Ltd v Jalvoran Pty Ltd [2004] NSWSC 1149; 12 BPR 22,649
Pianta v National Finance & Trustees Ltd [1964] HCA 61; 180 CLR 146

Texts Cited:

Category: Principal judgment

Parties:
Phillip Baden Hearse (First Appellant)
Robyn Mignon Hayes Hearse (Second Appellant)
Dennis Michael Staunton (First Respondent)
Bruce Lochart Thompson (Second Respondent)
Andrew Richard Corish (Third Respondent)

Representation

- Counsel:
D H Murr SC (Appellants)
G Curtin SC (Respondents)

- Solicitors:
Lander & Lander Lawyers (Appellants)
Henry Davis York Lawyers (Respondents)

File number(s): CA 2006/262913

Decision Under Appeal

- Court / Tribunal:

- Before: Hall J

- Date of Decision: 01 September 2010

- Citation: Hearse & Anor v Staunton & Ors [2010] NSWSC 954

- Court File Number(s) SC 12574/06

Publication Restriction:

Judgment

McCOLL JA: I agree with Whealy JA and his reasons and the orders his Honour proposes. I also agree with the remarks of Young JA.

YOUNG JA: I agree with Whealy JA and with his reasons, but I wish to add a couple of observations.

I am concerned that conveyancing solicitors would so easily agree with another solicitor's suggestion that a contract should be amended by simply writing in the name of a second purchaser.

I am not sure what is meant by the simple request to "amend" the contract. Normally once a contract is made, it can only be "amended" formally by variation, rescission and replacement with a new contract or novation. Assuming that the solicitors intended a variation, complications arise when the variation is adding a party. What probably happens is that a new contract is made to replace the former contract.

However, the argument proceeded on the basis that this was not the appropriate analysis. If that is correct, then the appellants' case runs foul of what Pape J said in Lee v Irons [1958]…

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 Staunton

Details

AGLC: Hearse v Staunton [2011] NSWCA 139
Case: [2011] NSWCA 139
Decision Date: 03 June 2011

CaseChat Overview and Summary

In *Hearse v Staunton*, the New South Wales Court of Appeal considered a dispute arising from a contract for the sale of land. The contract was initially entered into by the husband as the sole purchaser. Subsequently, the purchaser's solicitor informed the vendors' solicitor that the wife would be a joint transferee and requested that the contract be altered accordingly. The vendors' solicitor made the requested alteration. The wife, however, never intended to become a party to the contract. The vendors then sued the purchaser's solicitor for breach of warranty of authority.

The central legal issue before the Court of Appeal was whether the purchaser's solicitor had breached a warranty of authority by representing that the wife would be a joint transferee when she had no intention of becoming a party to the contract. This involved determining the scope of the solicitor's authority and the nature of the warranty implied when a solicitor acts on behalf of a client in contractual dealings.

The Court of Appeal upheld the verdict in favour of the defendant solicitor. The reasoning focused on the fact that the solicitor's instruction to alter the contract came from their client, the husband. While the solicitor did represent that the wife would be a joint transferee, this representation was based on instructions received from their client. The court found that the solicitor had acted within the scope of their authority as instructed by their client, and therefore, there was no breach of warranty of authority. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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Case Title:	Hearse v Staunton
Medium Neutral Citation:	[2011] NSWCA 139
Hearing Date(s):	19 May 2011
Decision Date:	03 June 2011
Jurisdiction:
Before:	McColl JA at [1]; Young JA at [2]; Whealy JA at [9].
Decision:	Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	Vendor and purchaser- husband on contract as sole purchaser- purchaser's solicitor tells vendors' solicitor that wife will be joint transferee and to alter contract- vendors' solicitor does so- wife never intends that she be party to contract- purchaser's solicitor sued for breach of warranty of authority- verdict for defendant upheld on appeal.
Legislation Cited:	Duties Act 1997, s 18
Cases Cited:	Lee v Irons [1958] VR 436 Masters v Cameron [1954] HCA 72; 91 CLR 353 Peter Warren (Properties) Pty Ltd v Jalvoran Pty Ltd [2004] NSWSC 1149; 12 BPR 22,649 Pianta v National Finance & Trustees Ltd [1964] HCA 61; 180 CLR 146
Texts Cited:
Category:	Principal judgment
Parties:	Phillip Baden Hearse (First Appellant) Robyn Mignon Hayes Hearse (Second Appellant) Dennis Michael Staunton (First Respondent) Bruce Lochart Thompson (Second Respondent) Andrew Richard Corish (Third Respondent)
Representation
- Counsel:	D H Murr SC (Appellants) G Curtin SC (Respondents)
- Solicitors:	Lander & Lander Lawyers (Appellants) Henry Davis York Lawyers (Respondents)
File number(s):	CA 2006/262913
Decision Under Appeal
- Court / Tribunal:
- Before:	Hall J
- Date of Decision:	01 September 2010
- Citation:	Hearse & Anor v Staunton & Ors [2010] NSWSC 954
- Court File Number(s)	SC 12574/06
Publication Restriction: