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
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
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- AGLC
- Love v Simmons [2016] WASCA 176
- Case
- [2016] WASCA 176
- Decision Date
CaseChat Overview and Summary
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.
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