Murray v Duddy - [2008] NSWCA 207

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Murray v Duddy [2008] NSWCA 207

FILE NUMBER(S):
40526/06

HEARING DATE(S):
17 July 2008

JUDGMENT DATE:
29 August 2008

PARTIES:
Wendy Jill MURRAY (Appellant)
Eric Keith DUDDY (Respondent)

JUDGMENT OF:
Allsop P Hodgson JA Brereton J

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 12555/01

LOWER COURT JUDICIAL OFFICER:
Harrison AsJ

LOWER COURT DATE OF DECISION:
2 August 2006

LOWER COURT MEDIUM NEUTRAL CITATION:
Murray v Duddy [2006] NSWSC 761

COUNSEL:
No Appearance (Appellant)
S J BURCHETT (Respondent)

SOLICITORS:
--- (Appellant)
MacLean & Curtis (Respondent)

CATCHWORDS:
CONTRACT – Agreement to purchase property at auction on behalf of another – Whether principal or agent repudiated agreement.

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:
Branir Pty Limited v Owston Nominees (No 2) Pty Limited (2001) 117 FCR 424
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Fitzgerald v Masters (1956) 95 CLR 420
Kyabram Property Investments Pty Ltd v Murray
Murray v Duddy [2004] NSWSC 298
Murray v Duddy [2005] NSWCA 55
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
Thacker v Hardy (1878) LR 4 QBD 685

TEXTS CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40526/06
SC 12555/01
ALLSOP P
HODGSON JA
BRERETON J
29 AUGUST 2008

Wendy Jill MURRAY v Eric Keith DUDDY

JUDGMENT

ALLSOP P: This is an appeal from orders made by an Associate Judge of the Court in the Common Law Division ordering that there be a verdict and judgment for the defendant. The plaintiff (the appellant in this Court) was ordered to pay the defendant’s costs as agreed or assessed.
The matter has a long history. A judge of the Court (Shaw J), after a hearing lasting 15 days, dismissed the appellant’s claims. See Kyabram Property Investments Pty Ltd v Murray; Murray v Duddy [2004] NSWSC 298. Those orders were set aside by this Court on the basis of inadequacy of reasons by the original trial judge. See Murray v Duddy [2005] NSWCA 55. The matter was remitted to the Common Law Division for re-hearing. Between 3 and 13 April 2006, over nine days, the primary judge (Harrison AsJ) re-heard the case. Judgment was delivered 2 August 2006. See Murray v Duddy [2006] NSWSC 761.
An appeal was brought from the orders made on 2 August 2006 and that appeal was called on for hearing in this Court before Ipp JA, Basten JA and Hoeben J on 3 September 2007. On that day, the appellant was unrepresented and applied for an adjournment. An adjournment was granted, but the appellant was ordered to pay the costs thrown away as a result of the adjournment.
The appeal was relisted for hearing on 17 July 2008. After appeal books were prepared which contained submissions of the appellant signed by her and submissions of the respondent, the appellant filed further submissions on 11 February 2008.
The…

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 Murray v Duddy

Details

AGLC: Murray v Duddy [2008] NSWCA 207
Case: [2008] NSWCA 207
Decision Date: 29 August 2008

CaseChat Overview and Summary

The appeal concerned a dispute between Murray (the appellant) and Duddy (the respondent) arising from an agreement to purchase property at auction. Murray had agreed to bid for and purchase the property on behalf of Duddy, who was to provide the funds. The central issue was whether Murray, by subsequently purchasing the property for himself, had repudiated the agreement with Duddy. The matter was heard by the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether Murray's actions constituted a repudiation of the contract with Duddy. This involved considering whether Murray had breached his contractual obligations by failing to purchase the property for Duddy and instead acquiring it for his own benefit. The court also had to assess whether Duddy had accepted any such repudiation, thereby bringing the contract to an end and entitling him to damages.

The Court of Appeal found that Murray's conduct in purchasing the property for himself, after agreeing to do so on behalf of Duddy, amounted to a repudiation of the contract. The court applied the principles of contract law concerning agency and breach of fiduciary duty, holding that Murray had acted in his own interests to the detriment of Duddy. By purchasing the property for himself, Murray had evinced an intention no longer to be bound by the terms of his agreement with Duddy. The court concluded that Duddy had validly accepted this repudiation.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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