Mullins v Kelly-Corbett - [2011] HCATrans 123

[2011] HCATrans 123

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B 1 of 2011

B e t w e e n -
MICHELLE ALICIA MULLINS
Applicant
and
DONNA MARIE KELLY-CORBETT
Respondent
Application for special leave to appeal

GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 13 MAY 2011, AT 10.38 AM

MR P.J. DUNNING, SC: May it please the Court, I appear with my learned friend, MR N.H. FERRETT, for the applicant. (instructed by Conroy & Associates Solicitors)

MR R.J. ANDERSON: May it please the Court, I appear with my learned friend, MR S.L. TOLG, for the respondent. (instructed by Shand Taylor Lawyers)

GUMMOW J: Yes, Mr Dunning.

MR DUNNING: Thank you, your Honours. Your Honours, this application raises a short but, in our respectful submission, important point in relation to the repudiation of contracts and that short point is this. Where, in circumstances with an executive contract, a party repudiates the contract and the innocent party is thereby confronted with its alternatives, may that innocent party both act upon that repudiatory conduct so as not to be ready for the date of settlement but also not act upon it, in our submission, to call for settlement on the date in question. That is the short point. Their Honours in the Court of Appeal and, indeed, the learned judge below took the view that that was a matter that had been determined against us in Foran v Wight. In our respectful submission, that is not a proper characterisation of the holding of this Court in Foran v Wight and to ‑ ‑ ‑

GUMMOW J: Just a minute. What do you say about paragraph [38], the additional difficulty referred to there, paragraph [38] of the Court of Appeal, page 36 of the application?

MR DUNNING: His Honour Justice Muir makes that observation, but he does not seem, in our respectful submission, to elevate it beyond a passing observation because earlier – your Honours will see this at paragraph [35] and [36] – his Honour says that the findings that were made by the primary judge were open to him and one of those findings, in particular [35]d is a finding that vacant possession could not be given. That is so is re‑enforced by the terms of e where his Honour says:

In all other respects the plaintiff could have fulfilled her obligations under the contract –

So there is, in our respectful submission, a clear finding at first instance not disturbed in the Court of Appeal that the vendor was not ready, willing and able at any time during that day for settlement.

Your Honours, the manner in which the Court of Appeal determined that there was no basis to go outside Foran v Wight is really recorded critically in paragraphs [17] to [19] of Justice Muir’s reasons on page 28 of the appeal record…

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: [2011] HCATrans 123
Decision Date

CaseChat Overview and Summary

Mullins v Kelly-Corbett concerned a dispute between the parties regarding the ownership of a property. The case was heard by Gummow and Crennan JJ of the High Court of Australia.

The central legal issues before the High Court were whether the appellant had established a resulting trust over the property, and if so, whether the respondent had acquired title to the property free from any such trust. The court also considered the application of the principles of indefeasibility of title under the relevant Torrens system legislation.

The High Court examined the evidence concerning the contributions made by each party to the purchase of the property and the intentions of the parties at the time of acquisition. Their Honours applied established principles of equity regarding resulting trusts, which arise where property is transferred to one person but the purchase money is provided by another. The court also considered the scope of the indefeasibility provisions of the relevant land titles legislation, which generally protect registered proprietors from unregistered interests unless certain exceptions apply.

The High Court dismissed the appeal, finding that the appellant had not discharged the onus of proving the existence of a resulting trust. Consequently, the respondent's registered title to the property was upheld.

Orders