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Hearse v Staunton

Hearse v Staunton

Case [2010] NSWSC 954 1 September 2010

Breach of Contract

Implied Terms

Misrepresentation

Construction of Documents

Authority to Contract

Contract Law

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CITATION: HEARSE & ANOR v STAUNTON & ORS [2010] NSWSC 954

HEARING DATE(S): Thursday 15 July 2010

JUDGMENT DATE :
1 September 2010

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: In light of the conclusions expressed above, namely:-
(1) that the defendant solicitors did not warrant or represent as alleged that they had the authority of Mrs Pallister to act for her as purchaser of the property;
(2) that they did not warrant or represent that they had Mrs Pallister’s authority to make a binding contract on her behalf for the purpose of making her a co-purchaser of the property;
(3) that the evidence does not establish that the parties had an intention to create contractual relations for the purchase of the property by Mrs Pallister,
there should be judgment in favour of the third, fourth and fifth defendants and I so order.

CATCHWORDS: CONTRACT – breach of warranty of authority – whether solicitor acting for the purchaser of a residential property represented or warranted that he had the authority to act for the purchaser’s wife in contracting on her behalf so as to make her a co-purchaser of the property - CONSTRUCTION OF DOCUMENTS – issues of construction of correspondence – request by letter to vendors’ solicitor to have the purchaser’s wife “added … as a joint purchaser pursuant to s.18(3) of the Duties Act 1997 …” – inconsistency in the letter – s.18(3) permitting exemption from duty when a “related person” is added to the transfer who is not a party to the contract – principles relevant to breach of authority – presumption that a solicitor does not have implied or ostensible authority to contract on behalf of a client in relation to a sale of land not rebutted – the solicitor did not make a representation or warranty as alleged – further no evidence of an intention to contract

LEGISLATION CITED: Conveyancing Act 1919
Duties Act 1997
Instruments Act 1928 (Vic)

CASES CITED: Abadeen Group Pty Limited & Anor v Bluestone Property Services Pty Limited & Ors [2009] NSWCA 386
Australian Broadcasting Corporation v XIVth Commonwealth Games Pty Limited (1988) 18 NSWLR 540
Baulkham Hills Private Hospital Pty Limited v GR Securities Pty Limited (1986) 40 NSWLR 631
Boulas v Angelopoulos (New South Wales Court of Appeal (Gleeson CJ, Kirby P and Samuels JA) BC9101486)
Ciavarella v Polimeni [2008] NSWSC 238
Collen v Wright (1857) 8 El & Bl 647; 120 ER 241
Ermogenous v Greek Orthodox Community of South Australia Inc (2002) 209 CLR 95
Headon & Ors v Clancy (Supreme Court of New South Wales, Windeyer J, unreported 26 June 1997 at 5)
Hearse & Anor v Pallister & Ors (Hall J, unreported 7 November 2007)
Hearse & Anor v Pallister & Ors [2008] NSWSC 504
Hearse & Anor v Pallister & Ors [2009] NSWSC 406
Lee v Irons [1958] VR 436
Lee & Ors v Ross & Ors [2003] NSWSC 289
Leggo v Brown & Dureau Limited (1923) 32 CLR 95

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 [2010] NSWSC 954
Case: [2010] NSWSC 954
Decision Date: 1 September 2010

CaseChat Overview and Summary

In Hearse v Staunton, the plaintiff sought to hold the defendant, a solicitor, liable for breach of a warranty of authority in relation to the purchase of a residential property. The plaintiff argued that the defendant had represented or warranted that he had the authority to act for the plaintiff’s wife in contracting on her behalf so as to make her a co-purchaser of the property. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the solicitor had breached a warranty of authority and whether there was evidence of an intention to contract. The court had to determine whether the solicitor had made a representation or warranty that he had the authority to act for the plaintiff’s wife and whether there was evidence of an intention to contract. The court also had to consider the principles relevant to breach of authority and whether the presumption that a solicitor does not have implied or ostensible authority to contract on behalf of a client in relation to a sale of land had been rebutted.

The court found that the solicitor had not made a representation or warranty as alleged and that there was no evidence of an intention to contract. The court held that the presumption that a solicitor does not have implied or ostensible authority to contract on behalf of a client in relation to a sale of land had not been rebutted. The court also found that the request by letter to the vendors’ solicitor to have the purchaser’s wife “added … as a joint purchaser pursuant to s.18(3) of the Duties Act 1997 …” was inconsistent with the allegation that the solicitor had made a representation or warranty as to his authority. The court held that the solicitor did not make a representation or warranty as alleged and that there was no evidence of an intention to contract.

The court dismissed the plaintiff’s claim and made no orders for costs.

Orders