Re: LOMBOK PTY. LIMITED
And: SUPETINA PTY. LIMITED and AVIONNE JOY VINCENT
AND BY CROSS-APPEAL Re: SUPETINA PTY. LIMITED and AVIONNE JOY VINCENT
And: LOMBOK PTY. LIMITED
No. QLD G78 of 1986
Contract - Costs - Vendor and Purchaser
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.
Lockhart J.
Pincus J.
CATCHWORDS
Contract - whether repudiated by institution of proceedings - party rescinding while in breach of contract - both sides' rescission s ineffectual - contract abandoned - recovery of deposit and "interest" paid.
Costs - appeal - costs of issues on which successful party failed.
Vendor and Purchaser - Queensland - "instalment contract" - statutor y restriction on rescission - recovery of money paid under uncompleted contract.
Property Law Act 1974 (Qld.) ss. 71, 72
Trade Practices Act 1974 (Commonwealth) s.52 & 53A
HEARING
BRISBANE
#DATE 27:2:1987
Counsel for the Appellant: Mr. C.J.L. Brabazon Q.C. with Mr. G.L. Martin
Solicitors for the Appellant: Skinner and Smith
Counsel for the Respondents: Mr. J.D. Muir
Solicitors for the Respondents: McCullough and Robertson
ORDER
The appeal be dismissed.
The appellant Lombok Pty. Limited pay the respondents' costs of and incidental to the appeal to be taxed.
The cross-appeal be dismissed.
The appellants Supetina Pty. Limited and Avionne Joy Vincent pay the respondent's costs of and incidental to the appeal to be taxed.
NOTE: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
JUDGE1
In this matter I have read in draft the reasons for judgment of Lockhart J. and Pincus J. and I agree with the conclusion of each of them that the appeals should be dismissed. I am indebted to them for their statements of the facts and issues which I am relieved from having to repeat.
The most contentious issue in this matter was whether, the contract of sale having been abandoned, the interest which had been paid in accordance with the terms of the contract should be repaid by the vendor to the purchaser. The trial judge was of opinion that it should be refunded and in my opinion he was correct.
In Summers v The Commonwealth (1918) 25 CLR 144 Isaacs J. said at page 153 -
"There remains only the claim for the return of the 25 pounds deposit. That having been deposited on the special terms of the written contract and that contract having been in law terminated, not by virtue of any provision contained therein but by virtue of tacit mutual abandonment, the abandonment must include abandonment of the right to retain the 25 pounds any longer. This, then, belongs to one of the plaintiffs... I may add that unless the contract is terminated the claim for the 25 pounds must fail."
Three members of the High Court in D.T.R. Nominees Pty. Ltd. v Mona Homes Pty. Ltd. (1978) 138 CLR 423 said on page 434:
"Thus the contract in the present case was still on foot on and after 25th July…
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- Case
- [1987] FCA 79
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the appellants had repudiated the contract by initiating proceedings and whether the contract had been abandoned. The court held that the contract had not been repudiated by the institution of proceedings, as the respondents had not repudiated the contract by their actions. The court further held that the contract had been abandoned, as both parties had effectively rescinded the contract while in breach of it. The court held that both parties' rescission was ineffectual and that the contract had been abandoned. Therefore, the contract was terminated, and the parties were entitled to recover their deposits and any interest paid.
The court dismissed the appeal and cross-appeal and ordered that the appellants pay the respondents' costs of and incidental to the appeal. The court held that the contract had been abandoned, and both parties were entitled to recover their deposits and any interest paid. The court held that the primary judge's orders were correct, and there was no merit in the appeal or cross-appeal. The court further held that the appeal and cross-appeal should be dismissed, and the costs of the appeal and cross-appeal should be taxed in favour of the respondents.
Orders
Orders of the court
The appeal be dismissed.
The appellant Lombok Pty. Limited pay the respondents' costs of and incidental to the appeal to be taxed.
The cross-appeal be dismissed.
The appellants Supetina Pty. Limited and Avionne Joy Vincent pay the respondent's costs of and incidental to the appeal to be taxed.
NOTE: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
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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