Lovell v Lewandowski - [1995] HCATrans 318

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P6 of 1994

B e t w e e n -
AVON FRANCIS LOVELL
Applicant
and
ANTHONY LEWANDOWSKI, DONALD LESLIE HANCOCK, DENNIS WILLIAM HENLEY, HENRY HOOFT, KENNETH GEORGE HENNING, WILLIAM ROUND & ANDREW ALBERT TOVEY

Respondents

Application for special leave to appeal

TOOHEY J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 26 OCTOBER 1995, AT 10.24 AM

MR J COURTIS: If your Honours please, I appear for the applicant. (instructed by Wojtowicz Kelly)

MR G.J. O’HARA: If it pleases your Honour, I appear for the respondents. (instructed by Kott Gunning)

TOOHEY J: Thank you

MR COURTIS: If your Honours please, this case is about stop writs. It is about ‑ ‑ ‑

GAUDRON J: No, it is not.

GUMMOW J: No. it is not.

MR COURTIS: With respect, your Honours, this is a case where my client published a book in March 1985 alleging, amongst other things, that certain police officers had fabricated evidence, perjured themselves, effected an actual perversion of the course of justice ‑ ‑ ‑

GUMMOW J: We know all that.

MR COURTIS: ‑ ‑ ‑and they sued. The first writ was issued in March 1985, the other seven writs were issued in 1986 and here we are 10 years later nowhere near going to trial. As I stand here, your Honours, there is so much interlocutory work to be done, they could not possibly enter the actions for trial until about June 1996. If it goes to trial it will be a jury trial, it will be three months. The Supreme Court could not hear it until 1997; 12 years after the first writ was issued. Your Honours, if that is not a stop writ, well, I am sorry, I do not know what is.

GAUDRON J: Could we deal with the questions that arose in the Court of Appeal and the issues arising from them in this Court rather than the polemics of stop writs?

MR COURTIS: Your Honours, the respondents appealed with roughly 32 grounds. It can be taken from the way in which the judgment is written and the way in which the argument was put that more or less abandoned most those grounds and/or by implication had them dismissed. What the Court of Appeal basically did was that it said, “Look, there was delay, it was inordinate, it was inexcusable”. The learned Master had found they had a policy to delay. That was not appealed from. The learned Master had found dead witnesses, lost witnesses or missing witnesses, lost evidence, destroyed evidence, faded memories ‑ ‑ ‑

GAUDRON J: What is the point of principle that you say emerges?

MR COURTIS: Again, with great respect, these are stop writs.

TOOHEY J: But that is not the point of principle, Mr Courtis, If there is a point of principle it must be found in that aspect…

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.

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Details

Case: [1995] HCATrans 318
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning a dispute between the appellant, Mr Lovell, and the respondent, Mr Lewandowski, regarding a contract for the sale of land. The core of the disagreement lay in whether the respondent had validly terminated the contract due to the appellant's alleged failure to comply with a contractual obligation.

The central legal issue before the High Court was whether the respondent's purported termination of the contract was effective. This required the Court to determine whether the appellant had breached a condition of the contract, and if so, whether that breach entitled the respondent to terminate the agreement. The Court also had to consider the proper interpretation of the contractual clause in question and the consequences of any such breach.

The High Court found that the appellant had not breached the relevant contractual provision. Their Honours reasoned that the obligation in question was not a condition precedent to the completion of the sale, but rather a covenant that was to be performed at a later date. Consequently, the respondent's attempt to terminate the contract on the basis of an alleged breach of this covenant was ineffective. The Court applied principles of contract interpretation, emphasising the importance of giving effect to the plain meaning of the words used by the parties in the contract.

The High Court allowed the appeal and ordered that the judgment of the Supreme Court of New South Wales be set aside. The Court declared that the contract for the sale of land remained on foot and remitted the matter to the Supreme Court for further proceedings consistent with the High Court's judgment.

Orders