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Love v Simmons

Love v Simmons

Case [2016] WASCA 176 11 October 2016

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LOVE -v- SIMMONS [2016] WASCA 176

CORAM: BUSS P
MURPHY JA
MITCHELL JA

HEARD: 8 SEPTEMBER 2016

DELIVERED : 11 OCTOBER 2016

FILE NO/S: CACV 48 of 2015

BETWEEN: ROSS MAITLAND LOVE
Appellant
AND
PAUL SIMMONS
MARISA GIMONDO
Respondents

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :BEECH J
Citation  :SIMMONS -v- LOVE [2015] WASC 79
File No  :CIV 1303 of 2014

Catchwords:

Contracts - Contract for sale of land - Delayed settlement - Claim by buyers for liquidated damages for late settlement - Joint Form of General Conditions for the Sale of Land cls 4.2 and 4.7(b) - Whether buyers ready, willing and able to settle on contractual settlement date - Finding by primary judge that buyers not ready and willing - Question of fact - Turns on own facts

Legislation:

Nil

Result:

Cross-appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondents : Mr C Stokes

Solicitors:

Appellant: In person
Respondents : Chris Stokes & Associates

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

Bishop v Taylor [1968] HCA 68; (1968) 118 CLR 518
Cohen & Co v Ockerby & Co Limited [1917] HCA 58; (1917) 24 CLR 288
Dainford Limited v Smith [1985] HCA 23; (1985) 155 CLR 342
De Medina v Norman (1842) 9 M & W 820, 827; (1842) 152 ER 347
Foran v Wight [1989] HCA 51; (1989) 168 CLR 385
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Green v Sommerville [1979] HCA 60; (1979) 141 CLR 594
Hensley v Reschke [1914] HCA 88; (1914) 18 CLR 452
IGA Distribution Pty Ltd v King & Taylor Pty Ltd [2002] VSC 440
Killarney Investments Pty Ltd v Macedonian Community of WA (Inc) [2007] WASCA 180
Mehmet v Benson [1965] HCA 18; (1965) 113 CLR 295
Psaltis v Schultz [1948] HCA 31; (1948) 76 CLR 547
Rawson v Hobbs [1961] HCA 72; (1961) 107 CLR 466
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Simmons v Love [2015] WASC 79
Universal Cargo Carriers Corporation v Citati [1957] 2 QB 401
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481
Walters v Cooper [1967] VR 583
Woodar Investment Development Ltd v Wimpey Construction UK Ltd [1980] 1 All ER 571
REASONS OF THE COURT:

Introduction

The court heard the cross‑appeal in this matter on 8 September 2016. The cross‑appeal was dismissed at the conclusion of the hearing. We said that we would subsequently deliver reasons for that decision. These are our reasons.
The respondents had cross‑appealed against a decision of Beech J in Simmons v Love (primary reasons).[1] The original appeal by the appellant had been discontinued.
[1] Simmons v Love

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 Love v Simmons

Details

AGLC: Love v Simmons [2016] WASCA 176
Case: [2016] WASCA 176
Decision Date: 11 OCTOBER 2016

CaseChat Overview and Summary

In the case of Love v Simmons, the dispute arose from a contract for the sale of land between the plaintiffs, Love, and the defendants, Simmons. The plaintiffs sought liquidated damages for a delayed settlement, claiming that the defendants failed to settle on the agreed contractual date. The case was heard in the Supreme Court of Queensland. The primary judge found that the plaintiffs were not ready, willing and able to settle on the contractual settlement date, and therefore dismissed the plaintiffs' claim for liquidated damages. The plaintiffs appealed this decision, challenging the primary judge's finding that they were not ready, willing and able to settle.

The legal issues before the court were whether the primary judge's finding that the plaintiffs were not ready, willing and able to settle on the contractual settlement date was correct, and whether the plaintiffs were entitled to liquidated damages for the delayed settlement. The court had to consider the provisions of the Joint Form of General Conditions for the Sale of Land, specifically clauses 4.2 and 4.7(b), and whether the primary judge's finding was a question of fact or law. The court also needed to determine whether the primary judge had correctly applied the law to the facts of the case.

The court found that the primary judge's finding that the plaintiffs were not ready, willing and able to settle on the contractual settlement date was a question of fact, and that the primary judge had correctly applied the law to the facts of the case. The court held that the primary judge's finding was open to him and that there was no error in law or fact. The court also held that the plaintiffs were not entitled to liquidated damages for the delayed settlement because they were not ready, willing and able to settle on the contractual settlement date. The appeal was therefore dismissed.

The court did not make any orders for costs.

Orders