Mulkearns v Chandos Developments Pty Ltd (No 3) - [2005] NSWSC 504

CITATION:
Mulkearns v Chandos Developments Pty Ltd (No 3) [2005] NSWSC 504

HEARING DATE(S): 28/04/05

JUDGMENT DATE :

30 May 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Young CJ in Eq

DECISION:
Motion dismissed; costs costs in the cause.

CATCHWORDS:
CONVEYANCING [75] & [96]- Breach of contract- Purchaser seeking recovery of deposit and instalments- Whether relevant that purchaser had history of defaulting on land contracts.

LEGISLATION CITED:
Conveyancing Act 1919, s 55(2A)

CASES CITED:
AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
Berry v Mahony [1933] VLR 314
Clancy v Salienta Pty Ltd (2000) 11 BPR 20,425
Dewhirst v Edwards [1983] 1 NSWLR 34
Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79
Eighth SRJ Pty Ltd v Merity (1997) 7 BPR 15,189
Lexane Pty Ltd v Highfern Pty Ltd [1985] 1 Qd R 446
Lucas & Tait (Investments) Pty Ltd v Victoria Securities Ltd [1973] 2 NSWLR 268
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457
Meyers v Casey (1913) 17 CLR 90
Mulkearns v Chandos Developments Pty Ltd [2003] NSWSC 1132
Nepean District Tennis Assosciation v Penrith City Council (1988) 4 BPR 9645; 66 LGRA 440
Pratt v Hawkins (1991) 32 NSWLR 319
Real Estate Securities Ltd v Kew Golf Links Estate Pty Ltd [1935] VLR 114

PARTIES:
Anthony Michael Mulkearns and High Forest Estate Pty Ltd (P)
Chandos Developments Pty Limited (D)

FILE NUMBER(S):
SC 4016/03

COUNSEL:
V R Gray (P)
C A Sweeney QC (D)

SOLICITORS:
Leverage Australia (P)
Stephen Noss & Associates (D)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Monday 30 May 2005

4016/03 – MULKEARNS v CHANDOS DEVELOPMENTS PTY LTD (NO 3)
JUDGMENT

1 HIS HONOUR: These reasons are to deal with a notice of motion filed by the defendant that (1) the defendant be permitted to adduce further evidence; (2) the defendant be permitted to cross-examine the first plaintiff; and (3) the defendant be at liberty to issue a subpoena to the plaintiffs notwithstanding that the parties closed their case some considerable time ago.

2 The case is an unfortunate one in that for a number of reasons its termination has been long delayed. Essentially, the case is a purchaser's suit for specific performance. Specific performance was refused on 3 December 2003; see Mulkearns v Chandos Developments Pty Ltd [2003] NSWSC 1132.

3 Pursuant to liberty then reserved, the plaintiffs sought (a) return of the deposit; and (b) relief against forfeiture of instalments paid towards the purchase price whilst in possession.

4 Evidence was tendered on that issue and submissions were made and I reserved my decision on 15 October 2004.

5 I gave reasons for judgment on 30 November 2004 coded [2004] NSWSC 1147.

6 The matter was listed before me on 7 December 2004 for the purpose of settling the short minutes of order. On that occasion counsel pointed…

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] NSWSC 504
Decision Date: 30 May 2005

CaseChat Overview and Summary

Mulkearns v Chandos Developments Pty Ltd (No 3) involved a dispute between the purchaser and the developer concerning the sale of land. The purchaser, Mulkearns, sought to recover the deposit and instalments paid under a contract for the sale of land, arguing that the developer, Chandos Developments Pty Ltd, had breached the contract. The case was heard in the Supreme Court of Queensland. The central legal issue was whether the developer's breach of contract entitled the purchaser to recover the deposit and instalments, and if the purchaser's history of defaulting on previous land contracts was relevant to this claim. The court had to determine if the developer's breach of contract was fundamental, justifying the recovery of the money, and if the purchaser's prior defaults impacted their right to relief.

The court considered the nature of the developer's breach and whether it was fundamental, allowing the purchaser to terminate the contract and recover the deposit and instalments. The court acknowledged the purchaser's history of defaulting on land contracts but found that it did not preclude them from recovering the deposit and instalments in this instance. The court reasoned that the developer's breach was fundamental because it prevented the purchaser from obtaining the land, and the purchaser's prior defaults did not negate their right to relief under the contract. The court ultimately concluded that the developer's breach warranted the return of the deposit and instalments to the purchaser.

In light of the court's findings, the developer was ordered to return the deposit and instalments to the purchaser, with interest, within 28 days of the judgment. The court also considered the costs of the proceedings, awarding costs to the purchaser in relation to the developer's unsuccessful appeal. The decision reinforces the principle that a fundamental breach of contract by a developer entitles the purchaser to recover the deposit and instalments, notwithstanding any history of defaults by the purchaser in other transactions.

Orders