Legal Research
Cases
Hewitt v CASELLA

Hewitt v CASELLA

Case [2006] WASC 254 10 November 2006

Contract Formation

Breach of Contract

Summary Judgment

Unconscionable Conduct

Contract Law

No judgment structure available for this case.

Type to search within this case.

HEWITT & ORS -v- CASELLA [2006] WASC 254

Link to Appeal :

[2008] WASCA 13

[2008] WASCA 13(S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 254
Case No:	CIV:1438/2006	Heard:	18 SEPTEMBER 2006
Coram:	MASTER NEWNES	Delivered:	10/11/06
No of pages:	15	Judgment Part:	1 of 1
Result:	Judgment for plaintiffs
Category:	B
PDF Version

Parties:	ANTHONY JOHN HEWITT LANA JOYCE HEWITT RONALD PETER TOLEDO KAREN TOLEDO TERENCE STEPHEN DUCKWORTH AND ROCHELLE LOUISE DUCKWORTH AS TRUSTEES OF THE TR & G SUPERANNUATION FUND PETER GARDINER DARYL THOMPSON GRAHAM DEWAR COLLEEN VAN DIJKEN JERVIS ATKINSON PAIGE ATKINSON DOMINIC CASELLA LISA FRAYNE JARMAN CHRISTINE MARY WORTHINGTON
Catchwords:	Practice and procedure Application for summary judgment Contract for sale of lot in proposed subdivision Defendant entitled to terminate contract if unwilling to comply with conditions of subdivision approval Condition of approval that defendant make arrangements with electricity authority for supply of power Whether terms of supply of electricity authority constituted condition of subdivision approval Whether defendant entitled to terminate contract Turns on own facts
Legislation:	Town Planning and Development Act 1928 (WA), s 24(5)
Case References:	Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Fitzgerald v Masters (1956) 95 CLR 420 Fletcher Construction Australia Ltd v Varnsdorf Pty Ltd [1998] 3 VR 812 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 Home Building Society Ltd v Pourzand [2005] WASCA 242 Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144 Watson v Phipps (1985) 60 ALJR 1 Westpac Banking Corporation v Tanzone Pty Ltd [2000] NSWCA 25 Esanda Finance Corporation Ltd v Spence Financial Group Pty Ltd [2006] WASC 177 Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989 Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 The State of Western Australia v Rothmans of Pall Mall (Australia) Ltd [2001] WASCA 25

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : HEWITT & ORS -v- CASELLA [2006] WASC 254 CORAM : MASTER NEWNES HEARD : 18 SEPTEMBER 2006 DELIVERED : 10 NOVEMBER 2006 FILE NO/S : CIV 1438 of 2006 BETWEEN : ANTHONY JOHN HEWITT

LANA JOYCE HEWITT

First Plaintiffs

RONALD PETER TOLEDO

KAREN TOLEDO

Second Plaintiffs

TERENCE STEPHEN DUCKWORTH AND ROCHELLE LOUISE DUCKWORTH AS TRUSTEES OF THE TR & G SUPERANNUATION FUND

Third Plaintiffs

PETER GARDINER

DARYL THOMPSON

Fourth Plaintiffs

GRAHAM DEWAR

COLLEEN VAN DIJKEN

Fifth Plaintiffs

JERVIS ATKINSON

PAIGE ATKINSON

Sixth Plaintiffs

AND

(Page 2)

DOMINIC CASELLA

Defendant

FILE NO/S :

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 Hewitt v CASELLA

Details

AGLC: Hewitt v CASELLA [2006] WASC 254
Case: [2006] WASC 254
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia considered an application for summary judgment brought by several plaintiffs against the defendant, Dominic Casella, regarding contracts for the sale of lots in a proposed subdivision. The plaintiffs sought a declaration that a notice of termination served by Casella was ineffective and that the contracts remained in force. The dispute centered on whether Casella was entitled to terminate the contracts based on conditions attached to the subdivision approval granted by the Western Australian Planning Commission (WAPC). The key legal issue was whether the terms specified by Western Power for the provision of electricity constituted a condition of the subdivision approval that would allow Casella to terminate the contracts. The court held that the meaning of the contract clause allowing termination was clear and unambiguous. It referred only to conditions to which the WAPC approval itself was subject. The requirements specified by Western Power did not constitute such a condition. Therefore, Casella was not entitled to terminate the contracts. The court granted the plaintiffs' application for summary judgment and declared that the contracts remained in full force and effect. The precise terms of the orders and costs were to be determined in subsequent hearings.

Orders