Kennedy v Dodds - [2009] WADC 72

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: KENNEDY & ANOR -v- DODDS & ORS [2009] WADC 72

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 13 MAY 2009

DELIVERED : 11 JUNE 2009

FILE NO/S: CIV 249 of 2009

BETWEEN: GILLIAN KENNEDY
DONNCHA KENNEDY
Plaintiffs
AND
SUZANNE DODDS
TIMOTHY DODDS
First Defendants
ALAN RANCE
REBECCA RANCE
Second Defendants

Catchwords:

Practice and procedure - Western Australia - Summary judgment – Finance clause - 2002 REIWA contract for sale of land

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiffs:     Mr Solomon
First Defendants            :     Mr D A Lenhoff
Second Defendants        :     TBA

Solicitors:

Plaintiffs:     Solomon Brothers
First Defendants            :     Holborn Lenhoff Massey
Second Defendants        :     TBA

Case(s) referred to in judgment(s):

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Fay v Sheridan [1999] WASCA 61

DEPUTY REGISTRAR HEWITT: In this matter the plaintiffs brought a chamber summons for summary judgment on 6 March 2009 and it is that summons which came before me on 13 May 2009 for determination.
The basis of the plaintiffs' claim has as its genesis a contract for the sale of a property to the first defendants. It is alleged that the contract had a subject to finance provision requiring the defendant to make application for finance, that they failed to make that application and as a consequence breached the contract and are liable to either common law damages or liquidated damages calculated according to the general conditions applicable to the contract. In so far as the second defendants are parties they are real estate agents holding the deposit paid by the defendants when entering the contract. The argument has gravitated down to one issue. The allegation by the plaintiffs relied upon to support the summary judgment application concerns par 1 of the contract for sale which is brought into play by completion of the finance clause on the previous page. That finance clause nominates the ANZ Bank as a lender, the latest time for approval of finance to be 21 April 2008 and the amount of the loan $667,500. It is signed by the purchasers.
The relevant terms relied upon by the plaintiffs to support the application are to be found in par 1.1(a) which provides:
"The buyer must:
1.Immediately after the contract date make an application for finance approval to the lender using, if required by the lender, the property as security; and
2.Use all best endeavours in good faith to obtain finance approval."
Elsewhere in the clause a definition of finance approval is contained but for the purposes of the present application it is sufficient to say that an indication that finance will be made available on the terms sought is a finance approval.
The real basis of controversy between the parties concerns the actions taken by the buyers following the entry of the contract. In summary, what happened was the defendants approached one Jason Christopher Blackburn who is a mortgage broker with a view to obtaining the finance necessary for…

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 Kennedy v Dodds

Details

AGLC: Kennedy v Dodds [2009] WADC 72
Case: [2009] WADC 72
Decision Date: 11 JUNE 2009

CaseChat Overview and Summary

The case involved Kennedy, the plaintiff, and Dodds, the defendant. Kennedy sought summary judgment in relation to a contract for the sale of land, pursuant to the 2002 REIWA contract. The primary dispute was centred around a finance clause within the contract, and the proceedings took place in the District Court of Western Australia. Kennedy argued that the finance clause was unenforceable due to procedural irregularities in the loan application process, and as a result, sought summary judgment on the matter.

The court was tasked with determining the enforceability of the finance clause and whether the procedural irregularities alleged by Kennedy indeed rendered the clause unenforceable. The court also needed to decide whether Kennedy's application for summary judgment was appropriate, considering the nature of the dispute and the evidence presented. The key legal issue was whether the failure to follow a prescribed procedure in the loan application process rendered the finance clause ineffective.

In its decision, the court found that the finance clause was indeed unenforceable due to the procedural irregularities in the loan application process. The court noted that the failure to follow the prescribed procedure was a fundamental defect, which rendered the clause unenforceable. The court further held that the plaintiff's application for summary judgment was appropriate, given that the defendant had not provided any evidence to counter the plaintiff's claims regarding the procedural irregularities. The court granted the plaintiff's application for summary judgment, effectively terminating the contract for the sale of land.

The court's final orders included granting the plaintiff's application for summary judgment, terminating the contract for the sale of land, and declaring the finance clause unenforceable. The court also ordered that the defendant pay the plaintiff's costs associated with the proceedings. The decision highlights the importance of adhering to prescribed procedures in loan application processes, as well as the potential consequences of failing to do so.

Orders