Janos v Chama Motors Pty Ltd - [2011] NSWCA 238

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Janos v Chama Motors Pty Ltd [2011] NSWCA 238
Hearing dates: 4 July 2011
Decision date: 23 August 2011
Before: Giles JA at [1], Young JA at [2], Handley AJA at [10]
Decision:
(1) Appeal allowed with costs.
(2) Judgment in the District Court set aside.
(3) Order of the District Court that the defendants pay the plaintiff's costs on an indemnity basis from 25 November 2009 set aside.
(4) In lieu thereof substitute judgment for the plaintiff for $69,351.50 with costs with effect from 10 May 2010.
(5) The respondent to have a certificate under the Suitors Fund Act if qualified.
[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: CONTRACT - election -- termination for breach -- unequivocal act -- service of legal process
CONTRACT - breach -- damages for loss of bargain -- assessment as at date of breach -- later facts relevant
CONTRACT - damages -- mitigation -- landlord accepts tenant's repudiation and terminates -- later sells freehold -- sale mitigated loss
Legislation Cited: Conveyancing Act 1919; s 23D(2)
Landlord and Tenant Act 1899; ss 8 & 10
Real Property Act 1900; s 55
Suitors Fund Act
Supreme Court Act 1970; s 73
Cases Cited: Arnold v Mann [1957] HCA 64; 99 CLR 462
Banque Belge v Hambrouk [1921] 1 KB 321 CA
Clough v London & North Western Railway Co (1871) LR Ex 26
Dendy v Evans [1910] 1 KB 263
G & A Lanteri Nominees Pty Limited v Fishers Stores Consolidated Pty Limited [2007] VSCA 4
Johnson v Agnew [1980] AC 367
Lakshmijit v Sherani [1974] AC 605
McDonald v Dennys Lascelles Ltd [1933] HCA 25, 48 CLR 457
Nicholas v Thompson [1924] VLR 554
Progressive Mailing House Pty Ltd v Tabali Pty Limited [1985] HCA 14, 157 CLR 17
Property Holdings Pty Limited v Duffy Bros Fruit Market (Campbelltown) Pty Limited [2008] HCA 10, 234 CLR 237
Tebb v Filsee Pty Limited [2010] VSCA 311
The Golden Victory [2007] UK HL 12, [2007] 2 AC 353.
The Golden Victory [2007] UKHL 12, [2007] 2 AC 353
Willis v The Commonwealth [1946] HCA 22, 73 CLR 105
Category: Principal judgment
Parties: Peter Janos - First Appellant
PJ Automotive Pty Ltd - Second Appellant
Chama Motors Pty Ltd - Respondent
Representation: COUNSEL
A Loxton - Appellants
D Provera - Respondent
John D Hancock Solicitor - Appellants
Bazzi Lawyers - Respondent

File Number(s): 2010/136923
Decision under appeal

Date of Decision:

2010-05-11 00:00:00

Before:

Judge Walmsley SC

File Number(s):

DC 2220 of 2009

Judgment

GILES JA : I agree…

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.

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Details

Case: [2011] NSWCA 238
Decision Date: 23 August 2011

CaseChat Overview and Summary

The appeal in *Janos v Chama Motors Pty Ltd* concerned a dispute arising from a contract. The parties involved were the plaintiff, Janos, and the defendants, Chama Motors Pty Ltd. The core of the disagreement related to the termination of the contract and the subsequent assessment of damages. The matter was heard in the Court of Appeal of New South Wales.

The legal issues before the Court of Appeal included whether the plaintiff had made an unequivocal election to terminate the contract due to a breach by the defendants, and how damages for loss of bargain should be assessed, particularly in light of later facts. Additionally, the court considered whether the defendants' subsequent sale of the freehold property served to mitigate their losses.

The Court of Appeal found that the plaintiff had indeed made an unequivocal election to terminate the contract. In assessing damages for loss of bargain, the court held that such assessment should generally be made as at the date of the breach, but that later facts could be relevant. Crucially, the court determined that the defendants' sale of the freehold property after terminating the lease constituted a mitigation of their losses.

Consequently, the Court of Appeal allowed the appeal, setting aside the judgment of the District Court. The order for indemnity costs in the District Court was also set aside. In its place, the Court of Appeal entered judgment for the plaintiff for $69,351.50 with costs, effective from 10 May 2010. The respondent was also granted a certificate under the Suitors Fund Act, if qualified.

Orders

Orders of the court

(1) Appeal allowed with costs.

(2) Judgment in the District Court set aside.

(3) Order of the District Court that the defendants pay the plaintiff's costs on an indemnity basis from 25 November 2009 set aside.

(4) In lieu thereof substitute judgment for the plaintiff for $69,351.50 with costs with effect from 10 May 2010.

(5) The respondent to have a certificate under the Suitors Fund Act if qualified.

[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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Janos v Chama Motors Pty Ltd [2011] NSWCA 238
Hearing dates:	4 July 2011
Decision date:	23 August 2011
Before:	Giles JA at [1], Young JA at [2], Handley AJA at [10]
Decision:	(1) Appeal allowed with costs. (2) Judgment in the District Court set aside. (3) Order of the District Court that the defendants pay the plaintiff's costs on an indemnity basis from 25 November 2009 set aside. (4) In lieu thereof substitute judgment for the plaintiff for $69,351.50 with costs with effect from 10 May 2010. (5) The respondent to have a certificate under the Suitors Fund Act if qualified. [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:	CONTRACT - election -- termination for breach -- unequivocal act -- service of legal process CONTRACT - breach -- damages for loss of bargain -- assessment as at date of breach -- later facts relevant CONTRACT - damages -- mitigation -- landlord accepts tenant's repudiation and terminates -- later sells freehold -- sale mitigated loss
Legislation Cited:	Conveyancing Act 1919; s 23D(2) Landlord and Tenant Act 1899; ss 8 & 10 Real Property Act 1900; s 55 Suitors Fund Act Supreme Court Act 1970; s 73
Cases Cited:	Arnold v Mann [1957] HCA 64; 99 CLR 462 Banque Belge v Hambrouk [1921] 1 KB 321 CA Clough v London & North Western Railway Co (1871) LR Ex 26 Dendy v Evans [1910] 1 KB 263 G & A Lanteri Nominees Pty Limited v Fishers Stores Consolidated Pty Limited [2007] VSCA 4 Johnson v Agnew [1980] AC 367 Lakshmijit v Sherani [1974] AC 605 McDonald v Dennys Lascelles Ltd [1933] HCA 25, 48 CLR 457 Nicholas v Thompson [1924] VLR 554 Progressive Mailing House Pty Ltd v Tabali Pty Limited [1985] HCA 14, 157 CLR 17 Property Holdings Pty Limited v Duffy Bros Fruit Market (Campbelltown) Pty Limited [2008] HCA 10, 234 CLR 237 Tebb v Filsee Pty Limited [2010] VSCA 311 The Golden Victory [2007] UK HL 12, [2007] 2 AC 353. The Golden Victory [2007] UKHL 12, [2007] 2 AC 353 Willis v The Commonwealth [1946] HCA 22, 73 CLR 105
Category:	Principal judgment
Parties:	Peter Janos - First Appellant PJ Automotive Pty Ltd - Second Appellant Chama Motors Pty Ltd - Respondent
Representation:	COUNSEL A Loxton - Appellants D Provera - Respondent John D Hancock Solicitor - Appellants Bazzi Lawyers - Respondent
File Number(s):	2010/136923
Decision under appeal	Date of Decision: 2010-05-11 00:00:00 Before: Judge Walmsley SC File Number(s): DC 2220 of 2009