MARIO CASELLA & SONS BUILDERS PTY LTD -v- DUCKWORTH & ANOR [2005] WASC 245

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 245
Case No:	CIV:1646/2005	Heard:	1 NOVEMBER 2005
Coram:	HASLUCK J	Delivered:	15/11/05
No of pages:	24	Judgment Part:	1 of 1
Result:	Caveat extended
Category:	B
PDF Version

Parties:	MARIO CASELLA & SONS BUILDERS PTY LTD (ACN 008 862 431) NEIL JAMES DUCKWORTH REGISTRAR OF TITLES
Catchwords:	Caveats Application to extend operation of caveat Interest of purchaser under an uncompleted contract of sale Effect of subject to purchase clause and special conditions as to subdivision Nonfulfilment of conditions held to give rise to voidable contract Whether vendor entitled to rescind contract Purchaser held to have caveatable interest
Legislation:	Transfer of Land Act 1893 (WA), s 137, s 138B, s 138C(2)
Case References:	Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 Egan & Ors v Chugg [2005] WASC 170 Fay v Sheridan [1999] WASCA 61 Gange v Sullivan (1966) 116 CLR 418 Hamdan v Widodo & Anor [2004] WASC 123 Jandric v Jandric [1999] WASC 22 Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407 Meehan v Jones (1982) 149 CLR 571 Plumor Pty Ltd v Handley (1996) 41 NSWLR 30 Porter v McDonald & Registrar of Titles [1984] WAR 271 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Zieme v Gregory [1963] VR 214 Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Depsun Pty Ltd v Tahore Holdings Pty Ltd [1990] ANZ ConvR 334 J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 Kheng v Secola [2001] ANZ ConvR 118 Lohregger v Francis Broady Investment Corporation Pty Ltd, unreported; SCt of WA (Scott J); Library No 920600; 19 November 1992 Sargent v ASL Developments Ltd; Turnbull v ASL Developments Ltd (1974) 131 CLR 634 Sulinmo Properties Pty Ltd v Maloney [1985] ANZ ConvR 25

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MARIO CASELLA & SONS BUILDERS PTY LTD -v- DUCKWORTH & ANOR [2005] WASC 245 CORAM : HASLUCK J HEARD : 1 NOVEMBER 2005 DELIVERED : 15 NOVEMBER 2005 FILE NO/S : CIV 1646 of 2005 BETWEEN : MARIO CASELLA & SONS BUILDERS PTY LTD (ACN 008 862 431)

Plaintiff

AND

NEIL JAMES DUCKWORTH

First Defendant

REGISTRAR OF TITLES

Second Defendant

Catchwords:

Caveats - Application to extend operation of caveat - Interest of purchaser under an uncompleted contract of sale - Effect of subject to purchase clause and special conditions as to subdivision - Nonfulfilment of conditions held to give rise to voidable contract - Whether vendor entitled to rescind contract - Purchaser held to have caveatable interest

Legislation:

Transfer of Land Act 1893 (WA), s 137, s 138B, s 138C(2)

(Page 2)

Result:

Caveat extended

Category: B

Representation:

Counsel:

Plaintiff : Mr R R Cywicki

First Defendant : Mr A…

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: [2005] WASC 245
Decision Date

CaseChat Overview and Summary

Mario Casella & Sons Builders Pty Ltd (plaintiff) sought an extension of a caveat lodged over a parcel of land which it had contracted to purchase from Neil James Duckworth (first defendant). The first defendant argued that the contract of sale had been terminated and that, accordingly, the plaintiff had no caveatable interest in the land. The court held that the contract of sale remained on foot because the first defendant had not exercised its entitlement to terminate the contract when it was entitled to do so and had, instead, allowed the contract to remain in force by its conduct. The court further held that the contract had not been brought to an end by operation of law because the special condition concerning the provision of water was a condition subsequent and not a condition precedent. The court also held that the plaintiff had a reasonably arguable case that the first defendant had not used his best endeavours to comply with the special condition and that, in those circumstances, the plaintiff had prospects of obtaining relief by way of specific performance. The court held that the plaintiff had a caveatable interest in the land and ordered that the operation of the caveat be extended.

Orders