Murphy v MITANOVSKI

[2012] SASCFC 126

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

MURPHY v MITANOVSKI & ANOR

[2012] SASCFC 126

Reasons for Decision of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Vanstone)

22 November 2012

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

Application for permission to appeal to the Full Court in private – appeal from a single Judge of the Supreme Court dismissing the applicant’s appeal against a decision in the Magistrates Court – subject matter of the appeal is of general importance and warrants the consideration of the Full Court.

Held: Permission to appeal granted.

MURPHY v MITANOVSKI & ANOR
[2012] SASCFC 126

Full Court:  Kourakis CJ, Gray and Vanstone JJ

1. THE COURT:       This is an application for permission to appeal against the orders of a single Judge of this Court dismissing an appeal from a decision of a Magistrate.

2. The subject matter of the appeal concerns the nature and extent of the duty of a vendor of land to mitigate the loss caused by the default of a purchaser by negotiating a fresh sale of the land to the defaulting purchaser.  The applicant, who was the vendor, complains that the Judge imposed an unduly onerous burden on her to seek substitute performance from the defaulting vendor.

3. The extent of a vendor’s duty to mitigate loss, through substituted performance generally and by reference to the contracts of the kind made by the parties in this particular case, is of general importance and warrants the consideration of the Full Court.

4. We grant permission to appeal.