COUNSEL: Mr M F Holmes QC/Mr J R Clarke (Appellant) Mr P T Taylor/Mr D R Stack (Respondents)
SOLICITORS: Mark Fraser (Appellant) Parker & Kissane (Respondents)
CATCHWORDS:
LEGISLATION CITED:
DECISION: See para 32
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40752/00 ED 2650/97
HEYDON JA
FOSTER AJA
ROLFE AJA
23 October 2001
MORRIS v HANLEY & ORS
Judgment
HEYDON JA: This is an appeal by leave granted on 19 March 2001 against orders of Young J which, inter alia, were to the effect that the plaintiff provide the sum of $115,000 as security for the costs of the defendants and that the proceedings be stayed until the security was given.
The plaintiff alleges breaches of duty by the defendants mainly in the period 13 May 1988 to 5 March 1992. The proceedings commenced on 30 May 1997.
On 7 January 1998 Hamilton J refused an application by the plaintiff for interlocutory injunctive relief with costs. He gave reasons for those orders on 8 January 1998. Those reasons revealed that the cause of action which the plaintiff was then relying on was a claim that the original members (the first-tenth defendants) of the eleventh defendant, a company, were under a fiduciary duty to the persons who from time to time were the permanent employees of the eleventh defendant to institute a continuous scheme of workers’ co-operative employment, and one of the elements of that duty was that persons becoming permanent employees should be informed of their right to take up shares in the eleventh defendant.
Hamilton J said: “the plaintiff does have a fairly arguable case, that a fiduciary relationship did arise despite the novelty of the proposition in such a situation”. But he said the case for permanent injunctive relief against the sale of the eleventh defendant’s business was, though “fairly arguable”, not “strong”. He refused interlocutory relief on the balance of convenience.
It seems that on some date in 1999 the proceedings were listed for final hearing before Hamilton J for seven days on 6 March 2000. The trial did not in fact proceed on that day.
On 14 April, 8 May and 23 May 2000 argument took place before Hamilton J on whether the plaintiff should be allowed to amend her Statement of Claim. She sought leave to file…
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 Morris v Hanley
Sign in free to access the full text
Details
AGLC
Morris v Hanley [2001] NSWCA 374
Case
[2001] NSWCA 374
Decision Date
CaseChat Overview and Summary
In *Morris v Hanley*, the Supreme Court of Queensland considered a dispute between a vendor and a purchaser concerning the sale of a residential property. The purchaser sought to terminate the contract, alleging a breach by the vendor in failing to provide vacant possession on the settlement date. The vendor contended that the purchaser was not entitled to terminate and sought specific performance of the contract.
The central legal issue before the Court was whether the vendor's failure to deliver vacant possession by the settlement date constituted a repudiatory breach of the contract, thereby entitling the purchaser to terminate. The Court also had to consider the implications of the purchaser's actions following the settlement date and whether these actions affirmed the contract.
The Court reasoned that the obligation to provide vacant possession on settlement was a fundamental term of the contract. It found that the vendor's inability to provide vacant possession due to the continued occupation of the property by a tenant, despite the vendor's efforts to secure vacant possession, amounted to a breach of this fundamental term. However, the Court also held that the purchaser's subsequent conduct, including their continued engagement with the vendor regarding the settlement and their failure to unequivocally accept the vendor's repudiation, amounted to an affirmation of the contract. Consequently, the purchaser was not entitled to terminate the contract.
The Court ordered specific performance of the contract in favour of the vendor, requiring the purchaser to complete the purchase.