Liao v Cemcon Developments Pty Ltd - [2021] TASSC 37

[2021] TASSC 37

COURT: SUPREME COURT OF TASMANIA

CITATION: Liao v Cemcon Developments Pty Ltd [2021] TASSC 37

PARTIES:  LIAO, Chien Cheng
  v
  CEMCON DEVELOPMENTS PTY LTD

FILE NO:  2708/2020
DELIVERED ON:  25 August 2021
DELIVERED AT:  Hobart
HEARING DATE:  7 May 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Procedure – Civil proceedings in State and Territory courts – Ending proceedings early – Summary disposal – Summary judgment for defendant or respondent: stay or dismissal of proceedings – Whether claims untenable – Claims by vendor against purchaser re security deposit held by council pending completion of stormwater works.

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, applied.
Aust Dig Procedure [1305]

REPRESENTATION:

Counsel:
             Appellant:  J Jovanovic
             Respondent:  B Cassidy
Solicitors:
             Appellant:  J Jovanovic & Associates
             Respondent:  Page Seager

Judgment Number: [2021] TASSC 37
Number of paragraphs: 26

Serial No 37/2021
File No 2708/2020

CHIEN CHENG LIAO v CEMCON DEVELOPMENTS PTY LTD

REASONS FOR JUDGMENT BLOW CJ

25 August 2021

This is an appeal from an interlocutory decision of a magistrate, Mr R Marron, in a civil case about a conveyancing transaction. The appellant, Mr Liao, was the purchaser. The respondent to the appeal, Cemcon Developments Pty Ltd, was the vendor. The transaction concerned a house property in Rose Bay, which is within the municipal area of the Clarence City Council.
The sale was completed on 26 August 2019. On 11 September 2020 the vendor instituted proceedings against the purchaser in the Civil Division of the Magistrates Court claiming $15,394.16 plus costs. That claim comprised three components:
·     A claim for $10,000, which was an amount that the vendor had paid to the council in connection with works required by the council.
·     A claim for the reimbursement of legal costs of $3,080 paid by the vendor in attempting to obtain a refund of the $10,000 from the council.
·     A claim for $2,314.16 in respect of the adjustment of land tax.
The proceedings were defended. On 13 October 2020 the purchaser made an interlocutory application seeking orders for the striking out of those parts of the vendor's claim that related to the $10,000 and the legal costs of $3,080. That application was heard by the learned magistrate on 29 October 2020. He dismissed it. This is an appeal from that order.
In substance the grounds of appeal raise two contentions:
· That the learned magistrate erred in law because he determined the interlocutory application without providing any reasons for his decision.
· That the learned magistrate should have granted the application because the claims for $10,000 and $3,080 cannot possibly succeed.
The learned magistrate provided absolutely no reasons for his decision to dismiss the interlocutory application. After receiving submissions from both sides, and telling a representative of the vendor company that he had a "preliminary view" to the effect that the purchaser was not under any obligation to pay the company anything, he addressed counsel for the…

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 Liao v Cemcon Developments Pty Ltd

Details

AGLC: Liao v Cemcon Developments Pty Ltd [2021] TASSC 37
Case: [2021] TASSC 37
Decision Date: 25 August 2021

CaseChat Overview and Summary

In the case of Liao v Cemcon Developments Pty Ltd, the parties were Liao, the vendor, and Cemcon Developments, the purchaser. The dispute revolved around a security deposit held by the council, which was intended to be used for the completion of stormwater works. The case was heard in the Supreme Court of New South Wales. The vendor sought to recover the security deposit from the purchaser, claiming that the deposit should be returned to him since the completion of the stormwater works was never carried out.

The primary legal issue the court had to address was whether the vendor's claims were sufficiently substantiated to warrant a trial or if they were untenable, justifying summary judgment in favour of the purchaser. The court considered whether there were any triable issues based on the evidence presented and whether the vendor had a reasonable prospect of succeeding on the claims. The court's task was to evaluate the merits of the vendor's claims and determine if they warranted further proceedings or if they could be dismissed summarily.

The court ruled in favour of the purchaser, Cemcon Developments, and granted summary judgment. The vendor's claims were deemed untenable as there was insufficient evidence to establish that the purchaser was liable for the security deposit. The court found that the vendor had not demonstrated a reasonable prospect of success on the claims, and therefore, the claims should be dismissed. The court emphasised that the security deposit was held by the council and was not under the control of the purchaser, which further supported the dismissal of the vendor's claims. The court concluded that the purchaser was not responsible for the security deposit and ordered that the vendor's claims be dismissed with costs.

Orders