KHENG -v- SECOLA & ORS [2000] WASC 148

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 148
Case No:	CIV:1231/1999	Heard:	10 & 11 MAY 2000
Coram:	SCOTT J	Delivered:	15/06/00
No of pages:	11	Judgment Part:	1 of 1
Result:	Judgment for the defendants
PDF Version

Parties:	GHEONG SWEEK KHENG ANTHONY GUISEPPE SECOLA JENNIFER LEE SECOLA BIAGIO SECOLA PRISCILLA MAY SECOLA
Catchwords:	Contract General contracting principles Offer and acceptance Vendor and purchaser Discharge, breach and defences to action for breach Contract for the sale of land General conditions for the sale of land Contract conditional on approval from Foreign Investment Review Board ("FIRB") Deposit forfeiture Plaintiff informed of FIRB requirements before entering into contract Plaintiff must act reasonably to obtain FIRB approval Equity General principles and maxims of equity Equitable doctrines and presumptions
Legislation:	Foreign Acquisition and Takeovers Act 1975 (Cth) Sale of Land Act 1970
Case References:	Butts & Anor v O'Dwyer & Anor (1952) 87 CLR 267 Erley Pty Ltd v Gunzburg Nominees Pty Ltd (1998) Aust Contract Reports 90,779 Gange v Sullivan (1966) 116 CLR 418 Lombardo v Morgan [1957] VR 153 Meehan v Jones & Ors (1982) 149 CLR 571 Perri & Anor v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 Yashima v Carroll (1994) 6 BPR 13,663 Brauer & Co (Great Britain) Ltd v James Clark (Brush Materials) Ltd [1952] 2 All ER 497 Coolangatta Investments Pty Ltd v Perri (1980) 1 BPR 9516 Kennedy v Vercoe (1960) 105 CLR 521 New South Wales Cancer Council v Sarfaty (1992) 28 NSWLR 68 Paltara Pty Ltd v Dempster (1961) 6 WAR 85

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : KHENG -v- SECOLA & ORS [2000] WASC 148 CORAM : SCOTT J HEARD : 10 & 11 MAY 2000 DELIVERED : 15 JUNE 2000 FILE NO/S : CIV 1231 of 1999 BETWEEN : GHEONG SWEEK KHENG

Plaintiff

AND

ANTHONY GUISEPPE SECOLA

JENNIFER LEE SECOLA

BIAGIO SECOLA

PRISCILLA MAY SECOLA

Defendants

Catchwords:

Contract - General contracting principles - Offer and acceptance - Vendor and purchaser - Discharge, breach and defences to action for breach - Contract for the sale of land - General conditions for the sale of land - Contract conditional on approval from Foreign Investment Review Board ("FIRB") - Deposit forfeiture - Plaintiff informed of FIRB requirements before entering into contract - Plaintiff must act reasonably to obtain FIRB approval

Equity - General principles and maxims of equity - Equitable doctrines and presumptions

(Page 2)

Legislation:

Foreign Acquisition and Takeovers Act 1975 (Cth)

Sale of Land Act 1970

Result:

Judgment for the defendants

Representation:

Counsel:

Plaintiff : Mr G M Abbott & Mr J M Lemmon

Defendants : Mr P G McGowan & Ms T C P Ling

Solicitors:

Plaintiff : Freehill Hollingdale & Page

Defendants : Corsers

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

Butts & Anor v O'Dwyer & Anor (1952) 87 CLR 267
Erley Pty Ltd v Gunzburg Nominees Pty Ltd (1998) Aust Contract Reports 90,779

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 Kheng v Secola

Details

AGLC: Kheng v Secola [2000] WASC 148
Case: [2000] WASC 148
Decision Date: 15 JUNE 2000

CaseChat Overview and Summary

The case of Kheng v Secola was heard in the Federal Court of Australia. The dispute arose from a contract for the sale of land between the plaintiff, Kheng, and the defendant, Secola. The plaintiff claimed that the contract was conditional on obtaining approval from the Foreign Investment Review Board (FIRB), and sought to recover the deposit paid to the defendant after the contract was terminated due to the plaintiff's failure to obtain FIRB approval.

The primary legal issue before the court was whether the plaintiff acted reasonably in failing to obtain FIRB approval. The court needed to determine if the plaintiff had taken all necessary steps to fulfil the condition precedent of obtaining FIRB approval, and if the forfeiture of the deposit was justified under the circumstances.

The court held that the plaintiff had a duty to act reasonably in obtaining FIRB approval. Despite being informed of the FIRB requirements before entering into the contract, the plaintiff failed to take any action to obtain approval. The court found that the plaintiff's failure to act reasonably resulted in the termination of the contract, and the forfeiture of the deposit was justified. The court emphasised the importance of acting reasonably and in good faith when entering into contracts with conditions precedent.

The court dismissed the plaintiff's claim and ordered that judgment be entered in favour of the defendants. The court found that the defendants were not liable for any damages or costs arising from the plaintiff's failure to obtain FIRB approval. The case highlights the importance of understanding the conditions precedent in a contract and acting reasonably to fulfil those conditions.

Orders

Orders of the court

Judgment for the defendants

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.