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Mulkearns v Chandos Developments Pty Ltd (No 4)

Mulkearns v Chandos Developments Pty Ltd (No 4)

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Case Copied 1 June 2005 48 min read

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CITATION:
Mulkearns v Chandos Developments Pty Ltd (No 4) [2005] NSWSC 511

HEARING DATE(S): 09/03/05

JUDGMENT DATE :

1 June 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Young CJ in Eq

DECISION:
Defendant to pay second plaintiff $297,209.

CATCHWORDS:
CONVEYANCING [74][95]- Breach- Vendor paid licence fees for occupation of purchaser- Fees to be deducted from balance of purchase monies- Breach by purchaser- Whether recovery allowed to purchaser- Whether purchaser to be compensated for increase in value of property because of improvements made whilst in possession- Whether deposit should be forfeited. ESTOPPEL [41]- Election- Forensic election- Plaintiff chose not to pursue claim for deposit at original hearing- No evidence that plaintiff needed to choose between two inconsistent courses. EVIDENCE [96]- Without prejudice offer of settlement- Admissible for purpose of contradicting evidence that may mislead Court- Evidence Act 1995, s 131(2)(g). PROCEDURE [107]- Notice of motion- Return of deposit- Capacity of Court to hear motion for return of deposit where claim not made in original specific performance suit- Preferable for deposit claim to be heard simultaneously with specific performance suit but not imperative.

LEGISLATION CITED:
Conveyancing Act 1919, s 55(2A)
Evidence Act 1995, s 131
Law of Property Act 1925 (Eng), s 49(2)
Supreme Court Act 1970, s 63
Trade Practices Act 1974 (Cth)

CASES CITED:
Bennett v Stuart (1927) 27 SR (NSW) 317
Benyon v Wongala Holdings Pty Ltd (1999) 9 BPR 16,781
Bernard v Weingarth (1997) 8 BPR 15,651
Berry v Mahony [1933] VLR 314
Brown v Federal Commissioner of Taxation (2001) 187 ALR 714
Carringville Pty Ltd v The Gatto Group Pty Ltd (2003) 11 BPR 21,069
Clancy v Salienta Pty Ltd (2000) 11 BPR 20,425
Clarke v Dilberovic (1982) NSW Conv R 55-083
Clurstock Pty Ltd v Timanu Pty Ltd (1988) NSW Conv R 55-419
Eighth SRJ Pty Ltd v Merity (1997) 7 BPR 15,189
Forgeard v Shanahan (1994) 35 NSWLR 206
Harkins v Butcher (2002) 55 NSWLR 558
Hasanovic v Polistena (1982) NSW Conv R 55-078
Heyman v Darwins Ltd [1942] AC 356
Howe v Smith (1884) 27 Ch D 89
Huber v Conroy [1982] 2 NSWLR 143
Hythe Corp v East (1866) LR 1 Eq 620
Inmer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26
James Macara Ltd v Barclay [1944] 2 All ER 31
James Macara Ltd v Barclay [1945] KB 148
Laird v Pim (1841) 7 M & W 474; 151 ER 852
Lexane Pty Ltd v Highfern Pty Ltd [1985] 1 Qd R 446
Lucantonio v Ciofuli (2003) 11 BPR 21,181
Lucas & Tait (Investments) Pty Ltd v Victoria Securities Ltd [1973] 2 NSWLR 268
McDonald v Dennys Lascelles Ltd (1993) 48 CLR 457
One Spencer St Pty Ltd v Maryland International Pty Ltd [2005] NSWSC 275
PC Developments Pty Ltd v Revell (1991) 22 NSWLR 615
Poort v Development Underwriting (Victoria) Pty Ltd [1976] VR 779
Poort v Development Underwriting (Victoria) Pty Ltd (No 2) [1977] VR 454
Port of Melbourne Authority…

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 511
Decision Date: 1 June 2005

CaseChat Overview and Summary

The case of Mulkearns v Chandos Developments Pty Ltd (No 4) involved a dispute between the plaintiff, Mulkearns, and the defendant, Chandos Developments Pty Ltd, regarding the sale and purchase of a property. The plaintiff sought to recover a deposit paid to the defendant for the purchase of property, claiming breach of contract and seeking compensation for improvements made to the property during their possession. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the purchaser could recover the deposit paid to the vendor, whether the purchaser was entitled to compensation for improvements made to the property, and whether the deposit should be forfeited. The court also considered whether the plaintiff's decision not to pursue the claim for the deposit at the original hearing constituted a forensic election.

The court found that the defendant breached the contract by not paying the licence fees for the purchaser's occupation of the property and by not deducting these fees from the balance of the purchase price. The court held that the purchaser was entitled to recover the deposit paid to the vendor as a result of this breach. The court further found that the purchaser was not entitled to compensation for the improvements made to the property, as there was no evidence of an agreement to this effect. The court also held that the plaintiff's decision not to pursue the claim for the deposit at the original hearing did not constitute a forensic election, as there was no evidence that the plaintiff needed to choose between two inconsistent courses.

The court ordered that the deposit paid by the purchaser to the vendor be returned, with interest. The court also dismissed the defendant's counterclaim for specific performance of the contract. The court held that the capacity of the court to hear a motion for the return of the deposit where the claim had not been made in the original specific performance suit was not in question, although it was preferable for the deposit claim to be heard simultaneously with the specific performance suit. The court further held that without prejudice offers of settlement were admissible for the purpose of contradicting evidence that may mislead the court, in accordance with section 131(2)(g) of the Evidence Act 1995.

Orders