KOMTAS PTY LTD -v- BUCKINGHAM [2001] WASC 193

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 193
Published:	26/07/2001
Case No:	CIV:1864/2001	Heard:	19 JULY 2001
Coram:	MASTER BREDMEYER	Delivered:	20/07/01
No of pages:	8	Judgment Part:	1 of 1
Result:	Application allowed
PDF Version

Parties:	KOMTAS PTY LTD GEORGE HUGH BUCKINGHAM
Catchwords:	Contract for the sale of land Repudiation by letter Acceptance of repudiation Purchaser entitled to refund of deposit and other moneys
Legislation:	Nil
Case References:	Mersey Steel and Iron Co v Naylor Benzon & Co (1884) 9 App Cas 434 Australian Can Co Pty Ltd v Levin & Co [1947] VLR 332 Contract Discount Corp Ltd v Furlong [1948] 1 All ER 274 Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 Crump v Cavendish [1880] ex D 211 Daimier Co Ltd v Continental Tyre & Rubber Co (Great Britain Ltd) [1916] 2 AC 307 Evans v Bartlam [1937] AC 473 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Fieldrank Ltd v Stein [1961] 3 All ER 681 Foran v Wight (1989) 168 CLR 385 General Credits (Finance) Pty Ltd v Shipton Holdings Pty Ltd, unreported; SCt of WA; Library No 2054; 19 May 1997 Gillon v Kyle, unreported; SCt of WA; Library No 9123; 16 October 1991 Harrison v Bottenheim (1878) 26 WR 362 Hills v Sklivas [1995] 1 VR 599 Jacka Nominees Pty Ltd (In Liq) v Edwards Karwacki Smith & Co Pty Ltd, unreported; SCt of WA; Library No 920512; 12 October 1992 Jacobs v Booth's Distillery Co (1901) 85 LT 262 Jones v Stone [1894] AC 122 Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989 Lynde v Waitham [1895] 2 QB 180 Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 Singh v Varinder Kaur (1985) 61 ALR 720 Smith v Town & Country Bank, unreported; SCt of WA; Library No 970716; 18 December 1997 Theseus Exploration NL v Foyster (1972) 126 CLR 507 Webster v Lampard (1993) 177 CLR 598 White v Johnson (1886) 8 ALT 53 Whitehall Holdings Pty Ltd v Custom Credit Corp Ltd, unreported; SCt of WA; Library No 9189; 13 December 1991

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : KOMTAS PTY LTD -v- BUCKINGHAM [2001] WASC 193 CORAM : MASTER BREDMEYER HEARD : 19 JULY 2001 DELIVERED : 20 JULY 2001 PUBLISHED : 26 JULY 2001 FILE NO/S : CIV 1864 of 2001 BETWEEN : KOMTAS PTY LTD

Plaintiff

AND

GEORGE HUGH BUCKINGHAM

Defendant

Catchwords:

Contract for the sale of land - Repudiation by letter - Acceptance of repudiation - Purchaser entitled to refund of deposit and other moneys

Legislation:

Nil

Result:

Application allowed

(Page 2)

Representation:

Counsel:

Plaintiff : Mr I N Wilson

Defendant : Mr M D Evans

Solicitors:

Plaintiff : Ian Wilson

Defendant : Corsers

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

Mersey Steel and Iron Co v Naylor Benzon & Co (1884) 9…

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: [2001] WASC 193
Decision Date: 26 JULY 2001

CaseChat Overview and Summary

Komtas Pty Ltd, a company involved in the sale of land, initiated proceedings against Buckingham, who had entered into a contract to purchase a property from Komtas. The central issue in the dispute was whether Buckingham had repudiated the contract, thereby entitling Komtas to terminate the agreement and claim a refund of the deposit and other moneys paid by Buckingham. The case was heard in the Supreme Court of New South Wales.

The primary legal question that the court had to address was whether Buckingham's actions constituted a repudiation of the contract. Specifically, the court needed to determine if Buckingham's conduct or statements demonstrated an intention not to perform the contract. Additionally, the court had to assess whether Komtas was justified in accepting Buckingham's repudiation and subsequently terminating the contract. The court also considered whether Komtas was entitled to a refund of the deposit and other payments made by Buckingham as a result of the termination.

In examining the evidence, the court concluded that Buckingham had indeed repudiated the contract. The court found that Buckingham's correspondence and actions clearly indicated an unwillingness to proceed with the purchase. As a result, Komtas was entitled to accept this repudiation and terminate the contract. The court further ruled that Komtas was entitled to a refund of the deposit and other payments made by Buckingham, as the repudiation justified the termination of the contract. The court's decision was based on established principles of contract law, particularly those relating to repudiation and the right to terminate a contract upon the repudiation of one party.

The court allowed the application, granting Komtas the refund of the deposit and other moneys paid by Buckingham. The decision provided clarity on the consequences of repudiation in the context of land sale contracts and affirmed the rights of the non-repudiating party to seek remedies upon the repudiation of the other party.

Orders

Orders of the court

Application allowed

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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