Measey v Evans - [1996] QCA 108

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 74 of 1994.

Brisbane

[Measey v. Evans & Ors.]

BETWEEN:

BRIAN HAROLD MEASEY and PATRICIA MARY MEASEY
Appellants

AND:

EARNEST VICTOR EVANS, EDWARD JOHN EVANS,
GRAHAM DOUGLAS EVANS and KAREN PATRICIA LANGTON
Respondents

___________________________________________________________________

Pincus J.A.
Ambrose J.
Helman J.

___________________________________________________________________

Judgment delivered 19/04/1996

Joint reasons for judgment of Pincus J.A. and Helman J. and separate concurring reasons for judgment of Ambrose J.
___________________________________________________________________

APPEAL ALLOWED WITH COSTS. ORDERS MADE BELOW SET ASIDE.
IN LIEU:

DECLARATION THAT RESPONDENTS NOT ENTITLED TO TERMINATE THE CONTRACT DATED 30 APRIL 1993 THE SUBJECT OF THESE PROCEEDINGS, AS THEY PURPORTED TO DO BY THEIR SOLICITOR’S LETTER OF 1 NOVEMBER 1993 AND THAT, NOTWITHSTANDING SUCH LETTER, THE CONTRACT REMAINED BINDING ON THE PARTIES. IT WILL BE FURTHER ORDERED THAT THE RESPONDENTS PAY THE COSTS OF THE PROCEEDINGS BELOW.

___________________________________________________________________

CATCHWORDS: CONTRACT - right to waive benefit of condition - right to waive benefit of condition although condition unfulfilled - clause expressing "The parties acknowledge that this special condition . . . is solely for the benefit of the Purchaser" - no express right to affirm - right to terminate - Gange v. Sullivan (1966) 116 C.L.R. 418 at 443 - not solely for benefit of purchasers despite express provision - reconciliation of clauses of contract.

Counsel:Mr P D McMurdo QC for the appellants.
Mr M M Stewart for the respondents.

Solicitors:Gadens Ridgeway for the appellants.
Tobin & Co. for the respondents.

Hearing date: 11 July 1995.

JOINT REASONS FOR JUDGMENT OF PINCUS J.A. AND HELMAN J.

Judgment delivered 19/04/1996

This is an appeal from a judgment of the Supreme Court refusing an application by the appellants for declarations relating to a contract for the sale of real property. Under the contract, dated 30 April 1993, the respondents agreed to sell to the appellants certain commercial shops at Cairns for $750,000. Under special condition 1, the Standard Conditions of Sale approved by the Queensland Law Society Incorporated and adopted by the Real Estate Institute of Queensland in August 1990 formed part of the contract; those Standard Conditions were not in evidence before the primary judge and are not in the record, presumably on the basis that they contain nothing relevant to the present dispute.

The contract also contains a special condition 6, which makes the sale subject to the obtaining of a certain approval. The issues before the primary judge, raised again in this Court, were two: first, whether the appellants (the purchasers) had a right to waive the benefit of the condition as to approval and to call for settlement of the transaction, although the condition was unfulfilled, and secondly, whether if they had such a right they exercised it by a letter dated 29 October 1993. The primary judge held against the purchasers on both these points.

Condition 6 is as follows:
"6. Zoning - Council Consent

(a)The Vendors warrant and represent to the Purchaser that the Land is…

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 Measey v Evans

Details

AGLC: Measey v Evans [1996] QCA 108
Case: [1996] QCA 108
Decision Date: 19 April 1996

CaseChat Overview and Summary

This appeal concerns a contract for the sale of commercial shops in Cairns. The appellants, Brian and Patricia Measey, sought declarations relating to the contract, specifically whether they had the right to waive the benefit of a condition concerning council approval and call for settlement, despite the condition being unfulfilled. The respondents, Ernest Victor Evans, Edward John Evans, Graham Douglas Evans, and Karen Patricia Langton, opposed the appellants' application. The primary judge had ruled against the appellants on both points. The contract included a special condition 6, which made the sale subject to obtaining certain council approval. The court needed to determine whether the appellants had the right to waive the benefit of this condition and if they exercised that right by a letter dated 29 October 1993. The Court of Appeal held that the appellants had the right to waive the condition and that they exercised this right by their letter of 29 October 1993. The court found that the contract allowed the appellants to waive the condition and call for completion, even if the condition had not been fulfilled. The appeal was allowed with costs, and the orders made by the primary judge were set aside. In their place, it was declared that the respondents were not entitled to terminate the contract and that the contract remained binding on the parties. The respondents were ordered to pay the costs of the proceedings below.

Orders