Murray v Duddy

Case

[2008] NSWCA 207

29 August 2008


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

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. The matter came before the Registrar of the Court of Appeal after February.  There can be no doubt that the appellant was fully aware of the date fixed for hearing of her appeal. 

  6. When the appeal was called on for hearing on 17 July 2008 there was no appearance by or on behalf of the appellant.  The matter was called outside the Court.

  7. Mr Burchett appeared for the respondent to the appeal.  With leave he filed in Court and read an affidavit of Duncan Cameron MacLean, his instructing solicitor.  The affidavit contained information concerning the attitude of the appellant to these proceedings.  The appellant had made clear to Mr MacLean on Wednesday 16 July that she did not intend to appear in Court on 17 July.  She was asked by Mr MacLean whether she was abandoning the appeal to which she said “No”.  She refused to tell Mr MacLean whether she was applying for an adjournment and said words to the effect “I will look to my position in due course”.  Mr MacLean then told the appellant that he was booked to come to Sydney on the afternoon flight and he thought he was entitled to know what her position was.  Later on Wednesday 16 July 2008, Mr MacLean sent a letter to the appellant at a facsimile number that she had provided to him stating, in the clearest of terms, that he was attending court for the appeal the following day and any adjournment application would be firmly resisted.  The letter also warned the appellant that if she did not appear she ran the risk of her appeal being dismissed.

  8. Later on Wednesday 16 July, Mr MacLean spoke to the Registrar of the Court of Appeal who told him that Mr Donnelly, an erstwhile legal representative of the appellant, had told the Registrar that he had given the appellant some advice and that he was “not in” the matter.  Mr MacLean sent another letter to the appellant.  This letter once again forewarned the appellant that the respondent would seek an order that the appeal be dismissed with costs if there was no appearance by or on behalf of the appellant.

  9. Mr Burchett, who appeared for the respondent, asked that the matter be dismissed for want of prosecution.  After some discussion, the Court indicated to Mr Burchett that given the lack of clarity in the position of the appellant, it could conceivably be thought that the delivery of the further written submissions in February and the rejection of the proposition that the appellant was abandoning the appeal meant that the appellant was making a request for the matter to be dealt with on the papers.  Mr Burchett did not object to the Court dealing with the appeal on the papers, that is, on the submissions presently before the Court.  To the extent that it could be the position that the appellant was implicitly seeking an adjournment, such application would be and is refused.  The above history and the appellant’s disregard for the time and costs of others revealed by her non-appearance are sufficient reason for that course.

  10. Mr Burchett handed up to the Court a page which had not been included in the Appeal Book which was page 6 of his client’s affidavit which commenced at page 152 of Volume 1 of the Appeal Book.  The affidavit was dated 8 August 2002.

  11. The amended statement of claim, upon which the primary judge decided the case, was filed in court on 3 April 2006.  In this document, the plaintiff claimed over $2 million arising out of her purchasing land at the request of the respondent in circumstances which I will describe.  In short, the appellant claimed an indemnity as an agent or damages for repudiation of the agency agreement under which she, as agent, at the request of the respondent as principal, committed herself to the purchase of a rural property previously owned and worked by the respondent which was being sold in a mortgagee sale by Westpac Banking Corporation.

  12. The appellant’s case was that she purchased the land in question as the respondent’s agent, committed herself to the funding of it, effected that purchase and subjected herself to liabilities on account of costs, interest and penalty interest and the purchase price less credit for the ultimate sale of the land.  The appellant also claimed that the respondent had engaged in fraudulent conduct in what he said to her about the availability of finance to him to put the appellant in a position of being able to pay for the land.

  13. The appellant is the adult niece of the respondent, who is an elderly man.  The respondent is the appellant’s father’s brother.  In 1967, the appellant married Mr Robert Murray.  They have been involved in the management of farming properties in Western Australia and New South Wales for most of their marriage.  In 1991, the appellant inherited a property and at about that time she and her husband moved from Western Australia to Boala in New South Wales.  The precise background of the appellant and the respondent is not immediately relevant except that they were both members of an established farming family in New South Wales with long experience of rural properties, rural affairs and farming. 

  14. The structure of the case was as I have earlier generally identified.  The appellant pleaded an agency relationship and a contract of agency.  The appellant claimed that prior to the settlement of the purchase of the property the respondent had repudiated his undertaking and the contract of agency by stating that he would not and could not fund the purchase.  Further, at the time of making the relevant representations that finance had been approved and that he would provide the purchase money for the completion of the property, it was said that he made such representations knowing that they were untrue or alternatively with reckless indifference as to whether they were true or false.  Thus the misrepresentation case was one structured as a fraud case.  No pleading of trust of the land was made.

  15. The primary judge in a careful judgment, if I may respectfully say, dealt with the matter substantially in a chronological fashion moving through the events in question and carefully examining and weighing the competing versions of events.  This was not an easy task.  One of the difficulties was that by the time the matter was re-heard before the primary judge, Mr Duddy was 79 years old and was not in a position to give any form of reliable evidence.  He was called into the witness box and in the few answers that he gave the primary judge formed the definite view that Mr Duddy did not have any useful recollection of the events.  The primary judge therefore had to rely upon his previous affidavit evidence that was admitted into evidence and his previous transcript.

  16. Mrs Jill Duddy, (the appellant’s mother and the respondent’s sister-in-law) had also furnished an affidavit and had been cross-examined during the first trial.  Mrs Jill Duddy was to give evidence at the trial before the primary judge, but her husband (that is the appellant’s father) had died a few days before the trial commenced and Mrs Duddy was unable to give evidence at the trial.  Her affidavit and cross-examination were also in evidence. 

  17. The other important matter to note at the outset is that the primary judge made clear her views as to the evidence of the appellant which was given orally before her and which was the subject of cross-examination, over four days.  The primary judge said, after she had carefully observed the appellant, that her Honour concluded that the appellant had become an advocate for her own case and did not feel constrained merely to answer questions but volunteered information that she thought would bolster her case.  The primary judge came to the view that the appellant had tailored her evidence to portray herself in the best possible light, and that where there were contemporaneous notes or other documentation in existence and their contents conflicted with the appellant’s evidence she preferred that documentation.  The primary judge also commented adversely on the appellant’s conduct in, effectively, threatening two witnesses.

  18. The property in question was called “West Garawan”.  There was another small property related to its purchase, called “Square Bush”.  Both properties were in the Gunnedah/Quirindi area of New South Wales.

  19. There was no dispute that prior to 9 May 1997 the respondent asked the appellant to bid for him at the auction of “West Garawan”.  Nor was there any dispute that prior to the auction the respondent had, by words and conduct, represented to the appellant that he had finance available to purchase the property from the appellant after she had settled.

  20. The appellant attended the auction.  Just prior to its commencement she made certain public statements which would seem to have assisted in dampening the enthusiasm of other bidders.  In any event, “West Garawan” was knocked down to the appellant for $1.8 million.  The evidence disclosed that the mortgagee, Wespac Banking Corporation, had turned down offers before auction of $2.1 million and $2.4 million.  The primary judge found that the appellant was aware of these pre-auction offers and that the appellant was aware that the price she had paid for the property was a very good one indeed. 

  21. The auction took place on Friday 9 May 1997.  The respective versions of events between the appellant and other witnesses diverge insofar as they concern events after the auction.

  22. The primary judge dealt with the matter chronologically and examined the evidence in a meticulous way.  It is unnecessary to recount in detail all the considerations reflected in the primary judge’s reasoning.  The following is a summary of the primary judge’s fundamental findings.

  23. By the evening of 9 May the appellant had decided to retain the property for herself.  It is clear that she had decided that she at least wanted some control over the property to try and prevent the respondent getting into further difficulty.  That desire for limited control had been articulated by the appellant to her own solicitor in the afternoon of 9 May.  The primary judge found that by the evening of 9 May the appellant had decided to keep the property for herself.  Her mother’s evidence, which was accepted, was consistent with a communication to that effect.  There was some contrary evidence in relation to this from the appellant’s husband, but his regularly kept diary did not support the proposition that his wife continued to maintain that she had bought the property for her uncle (the respondent).  To the contrary, the objective evidence left by Mr Murray in his diary was consistent with his wife having formed the view that she would keep the property for herself.  This finding was confirmed when the primary judge dealt with the evidence concerning Monday 12 May. 

  24. There was a clear conflict of evidence between the appellant and a Mr Leece about a conversation on 12 May.  Mr Leece gave evidence at both trials and was cross-examined before the primary judge.  According to him, the appellant made it plain to him that she intended to keep the property for herself and needed to arrange finance in that regard.  The evidence of Mr Leece was accepted in preference to that of the appellant.  This resolution of the conflicting evidence of Mr Leece and the appellant was based in significant part on the advantage the primary judge had of viewing the evidence and the witnesses as well as her Honour’s deep immersion in the facts of the case.

  25. There was another conflict of evidence about events of 12 May dealt with by the primary judge.  The appellant asserted a conversation with the respondent in which the respondent had stated that he had effectively tricked her into bidding and that she was now forced to enter a partnership with him.  The respondent denied this conversation.  The primary judge made a finding that the conversation did not take place.

  26. The primary judge then dealt with various aspects of the conflicting evidence as her Honour moved through the month of May into June.  During that analysis, the primary judge was able to conclude, with some confidence, that by 12 May the appellant had started taking steps not only to effect the finance of the property on her own behalf or for herself and her husband as partners, but also that the appellant had sought to find someone to lease or share farm “West Garawan” once the purchase of the property was completed.

  27. The primary judge found, having examined all the evidence about the steps being taken by the appellant and her husband and persons on their behalf, that by 25 May 1997 the appellant and her husband definitely regarded “West Garawan” as their property not the respondent’s.

  28. On the findings of the primary judge, some time in June, either 2 June or by 20 June, the respondent was aware that the appellant was keeping the properties for herself or on behalf of a partnership with her husband.  Completion of the properties took place in July.

  29. The primary judge first dealt with the principal/agency claim.  On the findings made by the primary judge, her Honour concluded that by 9 May 1997 the appellant was acting inconsistently with the agency arrangement and all that flowed thereafter was either conduct undertaken after the termination of the agency relationship or conduct undertaken that was inconsistent with the agency obligation or relationship.

  30. As to the contract claim, the primary judge concluded that the respondent had at no time repudiated his obligations under the contract.  Her Honour also found that the appellant had, by her conduct made known to the respondent, repudiated the contract, which, effectively, in all the circumstances, had been accepted by the respondent from approximately 20 June 1997.  The repudiation was the effective communication of a decision the appellant had made to keep the properties and pay for them herself.

  31. As to the misrepresentation claim, the primary judge concluded that at all relevant times, the respondent had believed that he had the finance available to purchase the property.  The primary judge concluded that the respondent had represented that he had finance available but concluded that at the time of making the statement he believed it to be true.

  32. There were eight grounds of appeal.  The first ground was that her Honour erred in finding that the respondent believed that he had access to $2 million dollars for the purchase of the two properties.  The finding of the primary judge was supported by evidence.  The respondent had procured letters of offer of finance totalling $1.7 million, acceptable by signing them and paying certain fees within seven days.  Both the respondent and his accountant, Mr Leece, gave evidence that upon their understanding of the loan agreement, the loan moneys were available to facilitate the purchase.  There is some evidence to the contrary by an officer of the lender called by the appellant, a Mr Bishop.  This evidence was dealt with by the primary judge by her acceptance of the evidence of the respondent and Mr Leece that they thought the finance was available.  It is unnecessary to traverse all the matters raised by the respondent in his submissions.  It is sufficient to conclude that the finding was clearly open to the learned primary judge.  The primary judge had the advantage of a number of days at the hearing absorbing all the evidence and considering the advantage of the trial judge in that regard: State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306; see generally Branir Pty Limited v Owston Nominees (No 2) Pty Limited (2001) 117 FCR 424 at 435-436[24], I am not able to conclude that there was any error in the conclusion of the primary judge in this regard. The submissions of the appellant do not assist in isolating any particular error in this respect which might lead to a conclusion that the primary judge fell into error. The submissions of the appellant were largely a recitation of the evidence given by and on her behalf, much of which was rejected by the primary judge.

  33. The second and third grounds complain about the finding of facts made about the appellant’s intention to complete the purchase of the properties as principal rather than as agent as at 9 May, or alternatively, as at 12 May 1997.

  34. These findings were made after a careful assessment of the evidence and an evaluation of the credit of the appellant.  Nothing in the appellant’s submissions leads me to conclude that there has been any error of the primary judge in drawing these conclusions.

  35. The fourth ground of appeal was that the primary judge erred in that she failed to give any or proper weight to the respondent’s asserted inability to provide funds for the purchase and to his disinclination to take any step in furtherance of the provision of money until he had reached a final agreement with Westpac.

  36. The appellant’s submissions do no more than recount evidence all of which was dealt with by the primary judge.  I am not able to identify any error in the conclusion of the primary judge that in effect the respondent did not in any way repudiate the relationship of a principal and agent or the contract of agency.  The particular matters referred to in the notice of appeal were part of the appellant’s case all of which was considered by the primary judge.  No relevant error has been demonstrated.

  1. The fifth asserted error was that the primary judge erred in failing to give any or proper weight to the evidence of Mr Lyons, solicitor for the appellant, in relation to the appellant’s statements to him on or about 13 May that she had purchased the properties on behalf of the respondent.

  2. The primary judge gave careful consideration to Mr Lyons’ evidence and dealt with it: see paragraphs 68-76 and 120 of her Honour’s reasons.  There is no substance to the complaint that the primary judge gave no proper weight to the evidence of Mr Lyons.

  3. The sixth ground of appeal was that the primary judge erred in finding that the appellant’s desire to ensure that a boundary adjustment between West Garawan and the property “Garawan” constituted an intention which was inconsistent with the appellant’s agreement to purchase West Garawan on behalf of the respondent.

  4. This individual factual matter was part of the primary judge’s consideration of all of the circumstances attending the appellant’s state of mind.  The submissions of the appellant give no basis to conclude or infer that there was any error by the primary judge in using the question of the boundary adjustment as a relevant consideration in her overall assessment of the evidence as to the intention and conduct of the appellant.  No error is shown.

  5. Grounds seven and eight assert that the primary judge erred in concluding that the appellant’s conduct brought an end to the principal and agent relationship.  On the findings made by the primary judge, supported by her findings based on credit, as well as the detailed consideration of the evidence, the appellant had decided to keep the property for herself or the partnership she had with her husband and that this was made known to the respondent by 20 June 1997.  Though the acceptance of such repudiatory conduct was not clear or express, it is evident that though the respondent was not happy with the state of affairs, effectively, he treated the agency relationship as at an end, the appellant and her husband keeping the land for themselves, the respondent abandoning his claims upon the appellant.  No error in the primary judge’s conclusions in this regard was disclosed in the submissions of the appellant.

  6. On looking at the findings and considering the complaints about them I see no basis for concluding that there is any error in the reasons of the primary judge as asserted in the notice of appeal or written submissions.

  7. It is also to be noted that from August 1997 until June 2001 the appellant made no claim upon the respondent in relation to the purchase.  It was only after receipt of a notice of default by the lender that the appellant to use the words of the primary judge “was prompted to issue her own demand upon the [respondent] for the first time”.

  8. In the light of the notice of appeal and the contents of the written submissions put before the Court, I am of the view that there is no basis revealed in any of the material for any conclusion that the primary judge committed any error in reaching the conclusions to which she came in her judgment.  In these circumstances the appeal should be dismissed with costs.

  9. HODGSON JA:  I agree with Allsop P.

  10. BRERETON J:  The appellant Wendy Jill Murray sued the respondent her uncle Eric Keith Duddy on three causes of action: first, for indemnity in respect of expenses and liabilities incurred by her in the course of acting as his agent upon the purchase of the West Garawan and Square Bush properties; secondly, for damages for breach of contractual arrangements between them to the effect that she would purchase the properties on his behalf and he would provide all the purchase moneys; and thirdly, for damages for an allegedly fraudulent misrepresentation that he had finance approved for the purchase of the properties.  Although, in her Further Submissions on the appeal, she also complained that an allegedly false valuation of West Garawan obtained by the respondent in June 1996 had “not been properly dealt with”, no case in respect of that valuation was pleaded.

  1. The factual and procedural background is summarised in the judgment of Allsop P, a draft of which I have had the benefit of reading.

  1. Appeal ground 1 challenges the primary judge’s finding that the respondent believed, at the time of the auction on 9 May 2007, that he had access to $2 million finance to fund the purchase of the properties – and thus that he believed the representation was true.  In this respect, the primary judge accepted evidence given by the respondent at the first trial, in circumstances where, due to infirmity, he was not available for cross-examination at the retrial. However, his evidence was tested by cross-examination at the first trial, the transcript of which was in evidence before her Honour.  Moreover, there was some corroboration for it, particularly in evidence given by the finance broker Mr Anderson (whose affidavit and oral evidence at the first trial was admitted on the basis that he was “unavailable”, in circumstances where the appellant was found to have made threats against him) that, in the weeks following the auction, the respondent telephoned him, asking why he could not get the loan moneys.  The respondent had finance approvals totalling $1.7 million prior to 9 May, and while I confess to some scepticism that such a belief could genuinely have been retained by the time of the auction on 9 May – in circumstances where the security stipulated by the approvals included the two properties of which he would now not be the nominal purchaser, where that very morning this court (Santow J) had refused to restrain the mortgagee sale upon a finding that the sum of $2 million could not in fact be provided to Westpac, and where some resolution with Westpac as to the balance of the debt remained outstanding – I am not prepared to say that her Honour’s conclusion was wrong.  It follows that the appellant failed to establish that the respondent did not believe the representation to be true, which is fatal to the fraud case.

  1. As to the agency and contract cases, there can be no doubt that, when she purchased the properties at the auction on 9 May 1997, the appellant did so at the request of the respondent and as his agent.  In those circumstances, she was entitled to be indemnified by her principal, the respondent, in respect of expenses and liabilities incurred in the course of the agency [Thacker v Hardy (1878) LR 4 QBD 685, 687 (Lindley J)]. Prima facie, the expenses and liabilities in respect of which she now claims arose from the purchase of the properties.  The decision that the appellant was not entitled to indemnity depends upon the conclusions of the primary judge (1) that the appellant having decided to keep the property for herself, the agency was “severed” and at an end by 12 May 1997 [Judgment, [149]]; and (2) that the respondent having learnt of the appellant’s repudiation on or about 20 June 1997, the contract was then “at an end” [Judgment, [161]].  Appeal grounds 7 and 8 challenge these conclusions.   

  2. The mere circumstance that the appellant may have acted inconsistently with the agency does not of itself put an end to the relationship.  Nor does the circumstance that the respondent became aware of repudiatory conduct of the appellant bring the contract to an end, in the absence of an election by the respondent to accept the repudiation and terminate, which I do not understand her Honour to have found.  The primary judge rejected the appellant’s case that the respondent had repudiated the agency or contract, and in the context of the various proposals that arose after 9 May 1997, including in respect of boundary adjustment and retention by the appellant of at least some interest in the properties, I agree that there was no sufficiently unequivocal act by or on behalf of the respondent to amount to a repudiation on his part.  However, rejection of the contention that the respondent repudiated the contract of agency does not involve acceptance of the converse, that the agency was terminated for repudiation by the appellant; it establishes only that the agency or contract remains on foot.

  1. However, the respondent’s defence included that, between the auction and completion of the purchase on 10 July 1997, the parties abandoned the contract of agency.  There are significant indicia of abandonment, not dependent on controversial facts: the appellant’s husband Bob Murray prepared a business plan in respect of West Garawan on 25 May 1997, in which he recorded a proposal to lease the property to a third party for four years, and then to “take over the operation of ‘West Garawan’ ourselves”; his diary entry for the same day referred to an expression of interest from a third party “in leasing Eric’s country (it’s not Eric’s it’s ours at this stage)”; on 29 May 1997 the appellant and her husband told their finance broker that they had purchased West Garawan originally with the intention of holding it temporarily until the respondent sorted out his problems with Westpac but had now decided to keep it; in early June they negotiated (albeit unsuccessfully) for the sale of their interest as purchaser to a third party, apparently on the basis that any profit or loss would be to their own and not to the respondent’s account; they completed the purchase in their own name with funding raised in their own right on 10 July; on 7 November 1997 they sold Square Bush, without any apparent consultation with the respondent; and thereafter they operated West Garawan as if it were their own, and made no claim on the respondent for four years until, being in default under their own mortgage, the mortgagee Kyabram on 24 October 2000 served demands on them for $1.657 million and $765,000; following which, on 15 June 2001, they instructed their solicitors to demand compensation from the respondent. 

  1. Meanwhile, by 17 August 1997, the respondent was seeking permission to graze on the Murrays’ side of the river, and to take the sorghum, and requesting more time to clean the shed and its surrounds – indicative of acceptance that he was not entitled to remain on the properties; and there is no evidence that he took any step to assert any claim to the properties thereafter.  As Allsop P has concluded (at [41]), although there was no clear or express acceptance of the appellant’s repudiation by the respondent, and although he was unhappy with the state of affairs, he effectively treated the relationship as at an end, the appellant retaining the properties, and the respondent abandoning his claims on her. 

  2. If the appellant regarded the contract as still on foot, one would have expected to see some demand from her prior to June 2001; if the respondent regarded it as still on foot, one would have anticipated some objection to the appellant’s conduct, and some claim of right by him to remain on West Garawan. Thus both parties acted as if there were no longer any agency, and in those circumstances should be taken to have abandoned the agency, and the contract [DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423, 434; cf Fitzgerald v Masters (1956) 95 CLR 420].

  3. It follows that the expenses and liabilities in respect of which the appellant now claims were not incurred in pursuance of the agency or recoverable under the contract, which had been abandoned. This conclusion does not depend on the contentious findings of fact the subject of challenge in appeal grounds 2, 3, 4, 5 and 6.  Accordingly, the primary judge was correct to dismiss the appellant’s agency and contract claims.

  1. I therefore agree with the orders proposed by Allsop P.

    **********

LAST UPDATED:
1 September 2008

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Cases Citing This Decision

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Cases Cited

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Murray v Duddy [2005] NSWCA 55
Murray v Duddy [2006] NSWSC 761