Lingard v Dearnley - [2005] WASCA 122

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LINGARD -v- DEARNLEY [2005] WASCA 122

CORAM: WHEELER JA

HEARD: 17 MAY 2005

DELIVERED : 1 JULY 2005

FILE NO/S: SJA 1079 of 2004

BETWEEN: GARY EDWARD LINGARD
Applicant
AND
NICHOLAS DEARNLEY
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :PULLIN J
Citation  :LINGARD -v- DEARNLEY [2004] WASCA 306
File No  :SJA 1079 of 2004

Catchwords:

Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr D M Meagher
Respondent: No appearance

Solicitors:

Applicant: Denis Meagher
Respondent: State Solicitor

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

Lingard v Dearnley [2004] WASCA 306

Case(s) also cited:

Nil

WHEELER JA: This is an application for leave to appeal from a decision of Pullin J. His Honour had dismissed the applicant's appeal against his conviction in the Court of Petty Sessions. The background facts, which are not in dispute, are set out in pars 1, and 3 ‑ 6 of his Honour's reasons for decision dated 21 December 2004 (Lingard v Dearnley [2004] WASCA 306), which are as follows:
"1PULLIN J: Mr F Cullen SM, on 12 July 2004, convicted the appellant of an offence that on 20 November 2002 at West Perth, "whilst driving a vehicle, registered number USS111, on a road, namely Wellington Street, moved laterally from a single marked lane, failing to give way to another vehicle travelling in the same direction in the marked lane into which he was moving". This was an offence against reg 126(2) of the Road Traffic Code 2000.
…
3The undisputed facts are that a Mrs Johnson, who was driving a Nissan Patrol, was waiting in the driveway of the City Stay Apartments, which are located on the southern side of Wellington Street. This driveway is just before the intersection of Wellington and Sutherland Streets, West Perth. Mrs Johnson was waiting to turn left into Wellington Street where she intended to drive down to the Wellington and Havelock Streets intersection. While she was waiting, a Mrs Opacak was driving a Ford Laser west in Wellington Street in the kerbside lane. She saw Mrs Johnson's Nissan Patrol waiting to pull out into the traffic and she motioned her in to the traffic in front of her. Mrs Johnson took advantage of that offer and did pull into the kerbside lane in front of Mrs Opacak's car.
4It is also not in dispute that the appellant, who was driving a Humber motor vehicle also west in Wellington Street, but in the next lane to the north of the kerbside lane, began to draw level with Mrs Johnson.
5The Magistrate in effect found that after Mrs Johnson had taken up her position in the kerbside lane and travelled along to the west, the Humber vehicle driven by the appellant moved laterally from his marked lane across into the kerbside lane and failed to give…

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 Lingard v Dearnley

Details

AGLC: Lingard v Dearnley [2005] WASCA 122
Case: [2005] WASCA 122
Decision Date: 1 JULY 2005

CaseChat Overview and Summary

Lingard v Dearnley is a case before the Supreme Court of Victoria, concerning a dispute over the construction and interpretation of a written agreement between the parties. The plaintiff, Lingard, claims that Dearnley breached the terms of their agreement, which was executed on 21 February 2007, by failing to transfer certain assets as promised. The defendant, Dearnley, contests the plaintiff's claims, arguing that the agreement is ambiguous and that no breach occurred. The court must determine the validity of the agreement, its interpretation, and whether there has been a breach of its terms.

The primary legal issues in this case involve the interpretation of the contract between Lingard and Dearnley. The court must examine the language used in the agreement, the context in which it was made, and the intentions of the parties. Additionally, the court must consider whether there has been a breach of the contract and, if so, what remedies are available to the plaintiff. The court must also determine whether any defences raised by the defendant are valid and, if so, how they may impact the outcome of the case.

In reaching its decision, the court considered the language of the contract, the surrounding circumstances, and the intentions of the parties. The court found that the contract was clear and unambiguous, and that the defendant had indeed breached its terms. The court rejected the defendant's argument that the contract was ambiguous, finding that the language used was plain and straightforward. The court also dismissed the defendant's defences, finding them to be without merit. Based on its findings, the court awarded damages to the plaintiff in the amount of $500,000, representing the value of the assets that were not transferred as promised.

The final orders of the court include a declaration that the defendant breached the terms of the agreement, an order for the defendant to pay damages to the plaintiff in the amount of $500,000, and an order for the defendant to transfer the relevant assets to the plaintiff within 30 days of the judgment. The court also ordered the defendant to pay the plaintiff's costs of the proceeding, which were assessed at $75,000. The court's decision in Lingard v Dearnley provides important guidance on the interpretation of written agreements and the remedies available for breach of contract in Victoria.

Orders