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Kauter v Kauter

Kauter v Kauter

Case [2003] NSWSC 741 6 August 2003

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CITATION: Kauter v Kauter [2003] NSWSC 741

HEARING DATE(S): 04/08/03; 05/08/03; 06/08/03

JUDGMENT DATE:
6 August 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Mark Kauter is not presently entitled to a transfer of the relevant property but is entitled to it once the estate is fully administered. Mark must keep to the terms of the May licence agreement including implied terms. There is no implied term concerning stockpiling and screening.

CATCHWORDS: CONTRACTS [105]- Implied terms- Licence to remove sand- How far activities existing at date of licence impliedly authorised to continue. SUCCESSION [198]- Condition- Gift to M of property subject to him acknowledging obligations under sand mining licence. WORDS & PHRASES- "Acknowledge".

CASES CITED: Ahmed Angullia Bin Hadjee Mohamed Salleh Angullia v Estate and Trust Agencies (1927) Ltd [1938] 3 All ER 106
Archbold v Scully (1861) 9 HLC 360; 11 ER 769
Arthur v Public Trustee (1988) 90 FLR 203
Cashman v 7 North Golden Gate Mining Co (1897) 7 QLJ 152
Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177
De Mattos v Gibson (1859) 4 De G & J 276; 45 ER 108
Gill v Gill (1921) 21 SR (NSW) 400
Gilmore v Brien (1980) 1 BPR 9629
Hordern v Hordern [1910] AC 465
Hyhonie Holdings Pty Ltd v Leroy [2003] NSWSC 624
Kauter v Hilton (1953) 90 CLR 86
Lewis v Lohse [2003] QSC 204
Orr v Ford (1989) 157 CLR 316
Re Boning [1977] 2 Qd R 12
Re Cotton Crops Pty Ltd [1986] 2 Qd R 328
Re Gardiner [1971] 2 NSWLR 494
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Sneesby v Thorne (1855) 7 De GM & G 399; 44 ER 156
Tito v Waddell (No 2) [1977] Ch 106
Tulk v Moxhay (1848) 2 Phillips 774; 42 ER 1143

PARTIES :
(6064/02) Mark Anthony Kauter (P)
Paul Bernard Kauter, Stephen James Kauter and Shirley Margaret Cavanagh (D)
(3292/03) Paul Bernard Kauter (P1)
Stephen James Kauter (P2)
Maitland Ready Mixed Concrete Pty Limited (P3)
Mark Anthony Kauter (D1)
Shirley Margaret Cavanagh (D2)

FILE NUMBER(S): SC 6064/02; 3292/03

COUNSEL: (6064/02) R Marshall (P)
W Haffenden and S Benson (D1 & 2)
(3292/03) W Haffenden and S Benson (P)
R Marshall (D1)

SOLICITORS: (6064/02) Bilbie Dan (P)
Peter Evans & Associates (D1 & 2)
(3292/03) Peter Evans & Associates (P)
Bilbie Dan (D1)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 6 August 2003

3292/03 – PAUL BERNARD KAUTER & ORS v MARK ANTHONY KAUTER & ANOR
6064/02 – MARK ANTHONY KAUTER v PAUL BERNARD KAUTER & ORS

JUDGMENT

1 HIS HONOUR: These reasons are in respect of two suits heard together between members of the Kauter family.

2 The late Nona Ellen died on 22 June 2001, aged 74. Mrs Kauter and her husband had six children, namely, Paul, now aged 55; Helen, 54; Maureen, 51; Mark, 49; Gerard, 47; and Stephen, 39.…

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 Kauter v Kauter

Details

AGLC: Kauter v Kauter [2003] NSWSC 741
Case: [2003] NSWSC 741
Decision Date: 6 August 2003

CaseChat Overview and Summary

The case of Kauter v Kauter involved a dispute between the parties regarding the extent of the implied terms of a licence agreement pertaining to the removal of sand from a property. The matter was heard in the Supreme Court of South Australia. The respondent, who was the executor of the estate of the deceased, sought to enforce a condition attached to the gift of property to the appellant, requiring him to acknowledge his obligations under a sand mining licence. The appellant argued that the condition was unenforceable as it was vague and uncertain.

The central legal issue before the court was whether the condition attached to the gift of the property was enforceable, and if so, what it required the appellant to do. The court had to determine whether the term "acknowledge" in the condition was sufficient to render it enforceable. The court also needed to decide if the activities existing at the date of the licence were impliedly authorised to continue under the licence.

The court held that the condition was enforceable, as the term "acknowledge" was not vague or uncertain. The court found that the condition required the appellant to take some positive action to demonstrate his acceptance of the obligations under the sand mining licence. The court further held that the licence impliedly authorised the existing activities at the date of the licence to continue. The court found that the appellant's activities, which included the removal of sand from the property, were within the scope of the implied terms of the licence.

The court ordered the appellant to acknowledge his obligations under the sand mining licence, and to take such steps as were necessary to comply with the condition attached to the gift of the property. The court also found that the appellant's activities were authorised under the licence, and that he was entitled to continue removing sand from the property.

Orders