Reported Decision:
59 NSWLR 617
Court of Appeal
CITATION: Hewitt v Debus [2004] NSWCA 54 HEARING DATE(S): 11 November 2003 JUDGMENT DATE:
12 March 2004JUDGMENT OF: Meagher JA at 1; Giles JA at 13; McColl JA at 101 DECISION: By majority: (1) Grant leave to appeal; (2) Direct that the notice of appeal be filed within seven days; (3) Dismiss the appeal; (4) Order that the claimant/appellant pay the costs of the opponent/respondent. CATCHWORDS: Vendor and purchaser - contractual right to terminate if default by purchaser - termination - question at trial whether time of the essence - held it was not so termination ineffective - question on appeal whether inquiry into time being of the essence excluded - appellant relied on Honner v Ashton (1979) 1 BPR 97049 - by majority, held inquiry not excluded - necessary to consider application of s 13 of Conveyancing Act 1919 - parties had not litigated application of s 13 - can not decide case on a basis not litigated. CASES CITED: Australian and New Zealand Banking Group Ltd v Burgess (Underwood J, 30 September 1994, unreported);
Balog v Crestani (1975) 132 CLR 289;
Brien v Dwyer (1978) 141 CLR 378;
Canning v Temby (1906) 3 CLR 419;
Carolan v AMF Bowling Pty Ltd (CA, 16 November 1995, unreported);
Casinos Australia International (Christmas Island) Pty Ltd v Christmas Island Desert Pty Ltd (Owen J, 16 December 1998, unreported);
Goffin v Houlder (1920) 90 LJ Ch 488;
Holland v Wiltshire (1954) 90 CLR 409;
Honner v Ashton (1979) 1 BPR 97049;
Kassem v Colonial Mutual [2001] NSWCA 38;
Legione v Hateley (1983) 152 CLR 406;
Louinder v Leis (1982) 149 CLR 509;
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457;
Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286;
Raineri v Miles [1981] AC 1050;
Smith v Hamilton [1951] 1 Ch 174;
Stern v McArthur (1988) 165 CLR 489;
Stickney v Keeble (1915) AC 386;
Tanwar Enterprises Pty Ltd v Cauchi (2003) 77 ALJR 1853;
Tilley v Thomas (1867) LR 3 Ch A 61;
Thomas v Monaghan (1975) 1 NZLR 1 cl 10;
United Scientific Holdings Ltd v Burnley Borough Council (1978) AC 904;
Wacal Investments Pty Ltd v Hurley (1992) 1 Qd R 455;PARTIES :
Melissa Anne Hewitt - Claimant
Catherine Debus - OpponentFILE NUMBER(S): CA CA 40257/03 COUNSEL: T Lynch - Claimant
M J Stevens - OpponentSOLICITORS: Ellis Baxter, Murwillumbah - Claimant
Abbott Tout - Opponent
LOWER COURTJURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): ED 4862/02 LOWER COURT
JUDICIAL OFFICER :Palmer J
CA 40257/03
ED 4862/02Friday 12 February 2004MEAGHER JA
GILES JA
McCOLL JA
HEWITT v DEBUS
Judgment
1 MEAGHER JA: In this matter I have seen in draft the judgment of Giles JA. Unfortunately, I disagree with it. More than that, I regard it as wholly mis-stating the law, and in a very fundamental…
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Details
- AGLC
- Hewitt v Debus [2004] NSWCA 54
- Case
- [2004] NSWCA 54
- Decision Date
CaseChat Overview and Summary
The appeal in *Hewitt v Debus* concerned a dispute between a vendor and a purchaser regarding a contract for the sale of land. The vendor had purported to terminate the contract due to an alleged default by the purchaser. The primary question at trial was whether time was of the essence for the completion of the contract, and the trial judge found that it was not, rendering the termination ineffective. The appeal to the New South Wales Court of Appeal raised the question of whether an inquiry into whether time was of the essence was excluded by the conduct of the parties.
The central legal issues before the Court of Appeal were whether the parties had, by their conduct, excluded an inquiry into whether time was of the essence for the contract's completion, and if not, whether the provisions of section 13 of the *Conveyancing Act 1919* (NSW) were applicable. The appellant vendor relied on the decision in *Honner v Ashton* to argue that the inquiry was excluded.
By majority, the Court of Appeal held that the inquiry into whether time was of the essence was not excluded by the parties' conduct. The majority found it necessary to consider the application of section 13 of the *Conveyancing Act 1919*, which deals with the effect of a notice to complete. However, the Court noted that the parties had not litigated the application of this section at trial. Consequently, the Court determined that it could not decide the case on a basis that had not been fully argued and considered by the parties.
The appeal was dismissed by majority. Leave to appeal was granted, and the appellant was ordered to file the notice of appeal within seven days. The appellant was also ordered to pay the costs of the respondent.
The central legal issues before the Court of Appeal were whether the parties had, by their conduct, excluded an inquiry into whether time was of the essence for the contract's completion, and if not, whether the provisions of section 13 of the *Conveyancing Act 1919* (NSW) were applicable. The appellant vendor relied on the decision in *Honner v Ashton* to argue that the inquiry was excluded.
By majority, the Court of Appeal held that the inquiry into whether time was of the essence was not excluded by the parties' conduct. The majority found it necessary to consider the application of section 13 of the *Conveyancing Act 1919*, which deals with the effect of a notice to complete. However, the Court noted that the parties had not litigated the application of this section at trial. Consequently, the Court determined that it could not decide the case on a basis that had not been fully argued and considered by the parties.
The appeal was dismissed by majority. Leave to appeal was granted, and the appellant was ordered to file the notice of appeal within seven days. The appellant was also ordered to pay the costs of the respondent.
Orders
Orders of the court
By majority: (1) Grant leave to appeal; (2) Direct that the notice of appeal be filed within seven days; (3) Dismiss the appeal; (4) Order that the claimant/appellant pay the costs of the opponent/respondent.
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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