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Ma v Adams

Ma v Adams

Case [2015] NSWSC 1452 2 October 2015

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ma v Adams [2015] NSWSC 1452
Hearing dates: 24-25 August and 3 September 2015
Date of orders: 02 October 2015
Decision date: 02 October 2015
Jurisdiction: Equity
Before: Robb J
Decision:
(1) The plaintiffs’ amended summons is dismissed.

(2) The plaintiffs are ordered to pay the defendant’s
costs of the proceedings.
(3) Exhibits and documents produced on subpoena
may be returned forthwith in accordance with
the Rules.
Catchwords: CONTRACTS – contract for the sale of land – auction – whether defendant’s purported termination of the contract was valid due to the plaintiffs’ failure to pay the deposit – whether post-dated cheque is not a “cheque” for the purposes of the contract causing a breach of an essential term – construction of contract – definition of “cheque” – post-dated cheque is not a cheque but a bill of exchange – estate agent’s acceptance of non-compliant post-dated cheque was unauthorised and not an acceptance for the purposes of the contract – thus, the plaintiffs never gave deposit required by the contract – plaintiffs’ application is dismissed – obiter dictum that plaintiffs would succeed on their claim that they did not impose a condition on the delivery of the cheque, within the meaning of the relevant contractual term “unconditionally” – obiter dictum if the defendant’s termination of contract had been invalid - were plaintiffs ready, willing and able to complete – defendant did not allow plaintiffs to access property to prepare compulsory valuation for financing purposes – defendant cannot then rely on its own breach of contract to terminate
Legislation Cited: Bills of Exchange Act 1882 (UK)
Bills of Exchange Act 1909 (Cth)
Cheques Act 1986 (Cth)
Cases Cited: Brien v Dwyer (1978) 141 CLR 378
Downer EDI Ltd v Gillies [2012] NSWCA 333; (2012) 92 ACSR 373
George v Cluning (1979) 28 ALR 57; [1979] ANZ ConvR 227
Grieve v Enge [2006] QCA 213; (2006) Q Conv R 54-651
Hodgson & Lee Pty Ltd v Mardonius Pty Ltd (1986) 5 NSWLR 496
Josland v Mullaley Properties Pty Ltd (1993) 6 BPR 13,285
Markson v Cutler & Anor [2007] NSWSC 1515; (2007) 13 BPR 25,127
Plumor Pty Ltd v Handley (1996) 41 NSWLR 30
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Sharjade Pty Ltd v the Commonwealth of Australia; Raaf (Landings) Ex-Servicemen Charitable Fund Pty Ltd (Formerly Darwinia Estate Pty Ltd) v Sharjade Pty Ltd [2009] NSWCA 373; (2009) 15 BPR 28,443
Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 11; (1931) 45 CLR 359
Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11; (1988) 166 CLR 245
Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418
Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529
W & R Pty Ltd v Birdseye [2008] SASC 321; (2008) 102 SASR 477
Texts Cited: C Craigie, “Post-dated cheques” (1983)…

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 Ma v Adams

Details

AGLC: Ma v Adams [2015] NSWSC 1452
Case: [2015] NSWSC 1452
Decision Date: 02 October 2015

CaseChat Overview and Summary

In the case of Ma v Adams, the plaintiffs sought to enforce a contract for the sale of land at auction, arguing that the defendant’s purported termination of the contract was invalid. The dispute centred on whether the plaintiffs' failure to pay the deposit and the use of a post-dated cheque constituted a breach of essential terms in the contract, justifying the defendant’s actions. The court was required to determine the validity of the defendant’s termination, the construction of the contract's definition of “cheque”, and whether the estate agent’s acceptance of the post-dated cheque was binding.

The court examined whether the post-dated cheque provided by the plaintiffs constituted a breach of the contract’s requirement for payment of the deposit. It found that a post-dated cheque was not a “cheque” as defined in the contract, but rather a bill of exchange. Therefore, the plaintiffs' deposit was not validly tendered. The court also held that the estate agent’s acceptance of the post-dated cheque was unauthorised and did not constitute an effective acceptance of the deposit. Consequently, the plaintiffs failed to meet the contractual requirement of paying the deposit “unconditionally”. The court dismissed the plaintiffs’ application, holding that the defendant’s termination of the contract was valid.

In its judgment, the court made an obiter dictum that if the termination had been invalid, the plaintiffs would have succeeded on their claim that they did not impose a condition on the delivery of the cheque, within the meaning of the relevant contractual term “unconditionally”. The court also noted that the defendant’s own breach of contract by preventing the plaintiffs from accessing the property to prepare for financing did not allow them to rely on their own breach to terminate the contract.

Orders