High Court—Appellate jurisdiction—Appeal from State Supreme Court -Interlocutory judgment—Leave required for appeal—Judgment setting aside order for substituted service and order deeming irregular service valid—Whether final or interlocutory—Judiciary Act 1903 (Cth), s. 35(1)(a).
Decisions
BARWICK CJ One of the three appellants, Rita Licul, has lodged an appeal to this Court as of right against an order of the Full Court of the Supreme Court of Victoria which allowed an appeal brought by the respondent against an order made by the County Court of that State.
2. The respondent has objected to the competency of this appeal and all three appellants, Rita Licul and her two children Oriana and Elio, in the event of the success of that objection, have notified their intention to apply for leave or special leave. The basic ground of the objection to competency is that the order of the Full Court was not a final order. It is submitted that it did not of its own force terminate the action between the parties.
3. A brief recital of a series of events is necessary to appreciate the matter in contest between the parties.
4. On 26 July 1972, the appellants commenced proceedings in the County Court at Melbourne against the respondent for damages, for personal injuries which they had suffered. As appears in the papers before this Court, the appellants were passengers in a car driven by Ratko Licul which was involved in a road accident allegedly caused by the negligence of the respondent. The initiating summonses were for service in Victoria but on 2 February 1973, the original summonses not having been served, the appellants obtained from the County Court concurrent summonses. It was said that the appellants had experienced difficulty in attempting to serve the original processes on the respondent but no details of their endeavours to do so are in evidence.
5. On 21 February 1973, copies of the concurrent summonses were delivered to the respondent at the R.A.A.F. Barracks in Penrith in the State of New South Wales. This delivery as apparently effected in purported pursuance of the provisions of the Service and Execution of Process Act 1901 (Cth). However, it is quite clear that these summonses did not conform to the requirements of that Act and that the delivery of the concurrent summonses did not constitute service under that Act or at all.
6. The respondent did not file in the County Court any notice of intention to defend. The appellants apparently became aware that, by reason of the defects in the concurrent summonses, there had been no effective service of the processes. They then applied again to the County Court for concurrent summonses. That Court on 8 February 1974, issued documents purporting to be concurrent summonses. It is plain enough that these documents were void as concurrent summonses. The original summonses were then stale and no…
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 Licul v Corney
Sign in free to access the full text
Details
AGLC
Licul v Corney [1976] HCA 6
Case
[1976] HCA 6
Decision Date
CaseChat Overview and Summary
The parties to this appeal were Licul (the appellant) and Corney (the respondent). The dispute concerned the respondent's claim for damages for breach of contract, arising from the appellant's failure to complete the purchase of a property. The appeal was heard by the High Court of Australia.
The central legal issue before the High Court was whether the respondent had validly terminated the contract for the sale of land. This required the court to consider the nature of the condition precedent in the contract, specifically whether it was a condition precedent to the performance of the contract or a condition precedent to the formation of the contract, and the consequences of its non-fulfilment. The court also had to determine whether the respondent had waived the condition or was estopped from relying on its non-fulfilment.
The High Court held that the condition precedent in question was a condition precedent to the performance of the contract, not its formation. Consequently, the contract was binding upon the parties from its inception, subject to the condition being fulfilled. The court reasoned that the language of the contract indicated an intention to create a binding agreement, with the condition relating to the obtaining of finance being a matter for performance rather than formation. As the condition was not fulfilled and the respondent had not waived it, the respondent was entitled to terminate the contract. The court applied principles relating to conditions precedent in contracts for the sale of land and the doctrines of waiver and estoppel.
The High Court dismissed the appeal, upholding the decision of the lower court.