Napper & Anor v Bultitude & Anor - [2009] SASC 37

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
NAPPER & ANOR v BULTITUDE & ANOR
[2009] SASC 37
Judgment of The Honourable Justice Gray
20 February 2009
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - EVIDENCE AND COURSE OF TRIAL
PROCEDURE - JUDGMENTS AND ORDERS - IN GENERAL - STATEMENT OF REASONS FOR DECISION
Appeal against Magistrate’s award of damages for breach of contract of sale – whether defendants under contractual obligations to maintain property between date of contract and date of settlement – whether evidence sufficient to properly assess claims for damages – whether Magistrate’s reasons adequate.
Held: Appeal allowed - the scope of the obligation to maintain a property between contract and settlement considered - failure to establish a change of condition between contract and settlement with respect to a number of claims - failure to prove particular claims - Magistrate’s award of damages of $14,858.50 set aside – judgment entered for respondents for $3,705.81.
Consolidated Holdings Ltd v Ireland [1946] All ER 284; Clarke v Ramuz [1891] 2 QBD 456; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; Jones v Bartlett (2000) CLR 166, considered.

NAPPER & ANOR v BULTITUDE & ANOR
[2009] SASC 37
Magistrates Appeal
GRAY J.

This is an appeal against a Magistrate’s award of damages for breach of a contract of sale.
The Magistrate’s award followed a lengthy hearing in regard to a number of claims for damages in respect of what was said to be obligations to maintain a farming property between the date of contract and the date of settlement. I have reached the conclusion that the award made by the Magistrate in respect of a number of the claims should be set aside or substantially reduced.
The proper assessment of the claims, because of their nature, necessarily would require considerable detailed evidence of the precise work performed, materials supplied and associated costs. Evidence led at trial fell short of such detail in respect of many claims. As a consequence there has been some difficulty in making an assessment of loss and damage in respect of those claims which I have found to be justified.
It would be unfortunate for this appeal to result in an order for retrial. The costs of the trial and the appeal are likely to engulf the amount at issue between the parties, and accordingly, I propose to adopt a robust approach to the appeal in an attempt to bring the litigation to an end. Both parties agreed that this would be desirable, and through their counsel, facilitated this approach.
Background
Kim Robert Napper and his mother Edith Clare Napper were the vendors of a rural property known as Clover Downs. They entered into a contract for the sale and purchase of this property on 13 September 2004. Mr Napper died as a result of injuries sustained in a road accident…

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 Napper & Anor v Bultitude & Anor

Details

AGLC: Napper & Anor v Bultitude & Anor [2009] SASC 37
Case: [2009] SASC 37
Decision Date: 20 February 2009

CaseChat Overview and Summary

The appeal in Napper & Anor v Bultitude & Anor concerned the damages awarded for breach of a contract of sale of a rural property known as Clover Downs. The vendors, Kim Robert Napper and his mother Edith Clare Napper, entered into a contract for the sale of the property with the plaintiffs, Paul Charles Bultitude and Joanne Margaret Bultitude. The primary dispute was whether the vendors had met their contractual obligations to maintain the property between the contract date and settlement. The vendors, represented by Alison Margaret Napper and Edith Napper, appealed the Magistrates Court's award of damages to the plaintiffs.

The legal issues in this appeal centred on the scope of the vendors' contractual obligations to maintain the property between the contract date and settlement, the sufficiency of the evidence to properly assess the claims for damages, and the adequacy of the Magistrate's reasons for the decision. The vendors argued that the evidence did not establish a change in the condition of the property and that some claims were not supported by evidence. They also contended that the Magistrate's reasons were inadequate.

The court considered the contractual obligations outlined in the special conditions of the contract. It was noted that clause 5.6.2 required the vendors to maintain the property in a proper manner so as to maintain its condition as at the date of the agreement. The court examined the evidence provided by both parties and concluded that the plaintiffs had not established a change in the condition of the property between the contract date and settlement. The court rejected the claim for fencing costs as no evidence supported the existence of a fence. It allowed a claim for some work and re-stringing of some fencing, estimating a cost of $100. The court set aside the Magistrate's award of damages of $14,858.50 and entered judgment for the plaintiffs for $3,705.81, including the $100 for re-stringing the fencing. The court agreed to hear the parties on interest and costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

It would be unfortunate for this appeal to result in an order for retrial. The costs of the trial and the appeal are likely to engulf the amount at issue between the parties, and accordingly, I propose to adopt a robust approach to the appeal in an attempt to bring the litigation to an end. Both parties agreed that this would be desirable, and through their counsel, facilitated this approach. Background Kim Robert Napper and his mother Edith Clare Napper were the vendors of a rural property known as Clover Downs. They entered into a contract for the sale and purchase of this property on 13 September 2004. Mr Napper died as a result of injuries sustained in a road accident on 6 October 2004. On 25 February 2005, Mr Napper’s wife, Alison Margaret Napper, as executrix of his estate, attended to the settlement of the contract. Alison Napper and Edith Napper are the defendants and appellants in these proceedings. The plaintiffs and respondents, Paul Charles Bultitude and Joanne Margaret Bultitude, were the purchasers of the property. Clover Downs, a 1,450 hectare farming property, included a house, cottage, sheds and stockyards. The property was divided into 24 paddocks. The water supply was sourced from mains water, and was piped to troughs allowing stock to access water from the paddocks. There was an area of scrub on the property. The defendants had used the property primarily for the raising of beef, and this was the farming intention of the plaintiffs. Landmark Operations Ltd, through a colleague of Mr Napper, Geoffrey Watts, acted as agent for the sale. A standard form real estate contract was used. The contract included an annexure containing special conditions. The contract identified Landmark as the vendor’s agent. The primary dispute between the parties was whether the defendants had met their contractual obligations to generally maintain the property in a proper manner between the date of the contract and the date of settlement. A special condition to the contract permitted the purchasers to stock the property prior to settlement. It is convenient at the outset to set out relevant clauses of the contract:5.6 RiskThe Purchaser acknowledges that they shall make and rely upon its own inquiries in relation to the following matters.5.6.1The property is at the risk of the Purchaser in all respects from the date of this Agreement.5.6.2Notwithstanding clause 5.6.1, the Vendor must farm, graze and manage the Land and the Property, and generally maintain the Property in a proper manner so as to maintain its condition as at the date of this Agreement. In particular, the Vendor must not at any time between the date of this Agreement and Settlement, graze on the Land any greater numbers of Livestock of any class or description than are grazing on the Land at the date of this Agreement other than by way of natural increase.5.6.3The Vendor gives no warranty that the property is free from any contamination or disease except as set out in the Schedule or that the Property is suitable for the purpose for which the Purchaser intends to use the Property.…7 Clearing Sale7.1The Vendor his agents and or servants reserve the right to hold and conduct a clearing sale on the property prior to the date of settlement.7.2 Vendor’s Default7.2.1If the Vendor breaches this Agreement prior to or on the Settlement Date, the Purchaser may without prejudice to any other legal rights or remedies the Purchaser may have, at any time after the occurrence of such breach, give to the Vendor notice in writing requiring such breach to be remedied within the period specified in the notice being not less than three (3) business days after serving of the notice.7.2.2Unless the breach is remedied within that period, the Purchaser may:-7.2.2.1treat this Agreement as being terminated at the end of that period; or7.2.2.2postpone the Settlement Date until after the breach is rectified and notified to the Purchaser and claim from the Vendor (in which case the Vendor must pay to the Purchaser):7.2.2.2ainterest at the default rate on the full Price from and after the Settlement Date to and including the date when such breach ceases and is notified to the Purchaser, or7.2.2.2bthe amount of the actual damage suffered by the Purchaser (whichever is the greater amount, at the Purchaser’s discretion).7.2.3If this Agreement is terminate under the provisions of this clause 7.2 all monies paid by the Purchaser must be refunded to the Purchaser.7.2.4If the Settlement Date is postponed pursuant to the terms of this clause, all rates and taxes (but not income) shall be re-adjusted to midnight on the day before settlement takes place.7.3 Time of the EssenceTime is of the essence in respect of any obligation under clause 7.…8.1 NoticesNotices under this Agreement:-8.1.1must be in writing and signed by the party giving notice, or its authorised agent.8.1.2may be served:-8.1.2.1by being left at the last known residence or place of business of the intended recipient; or8.1.2.2by being sent by ordinary post in a pre-paid envelope to the address of the party set out in this Agreement; or8.1.2.3by being transmitted by facsimile machine to the intended recipient’s facsimile machine at the number specified in the Schedule;8.1.3will be deemed served when posted in accordance with clause 8.1.2.2 two (2) business days after posting;8.1.4will be deemed served when sent by facsimile machine on the first business day after the sending party’s facsimile machine reports completion of the transmission of the notice to the intended recipient; and8.1.5will be deemed sufficiently served in accordance with this clause on one of several persons comprising the Vendor or the Purchaser.9 Right to Store Equipment9.1 The Vendor and Purchaser hereby agree that the Purchaser shall have the right to store equipment and goods in the cottage and the shed at the cottage prior to settlement, at no costs from the 1st day of October 2004.9.2 The storage of such equipment and goods by the Purchaser shall be at the Purchasers full risk and responsibility at all times.10 Purchaser to Depasture Livestock Prior to Settlement10.1 The Vendor and Purchaser agree that the Purchaser will be entitled to depasture up to 100 Cows and their Calves at foot from the 20th Day of December 2004 and to depasture a further 50 Cows and their calves at foot from the 1st day of February 2005 up to the date of settlement at no cost to the Purchaser but at the Purchasers risk and responsibility in all things at all times.10.2 The Vendor agrees to allow the Purchaser to depasture up to 100 cows and calves to earlier than the 20th of December 2004 should the Vendor sell off up to 100 cows and calves of the Vendors prior to the 20th of December 2004.10.3 The Purchaser hereby agrees that prior to any livestock being depastured onto the property, the Purchaser shall provide to the Vendor at the Purchasers [sic] cost a copy of a public risk policy from a reputable insurer acceptable to the Vendor in an amount not less than Ten Million Dollars.($10,000,000.00)10.4 It is further agreed that the Purchaser shall have full use and enjoyment of all livestock facilities (sheep yards, shearing sheds, cattle yards, laneways etc) up to and until the date of settlement at no cost to the Purchaser other than all electricity consumed in the above listed activities, The Purchaser his agent and or servants shall have the right of egress and regress onto the property at all times for the purpose of livestock management and care.10.5 The Purchaser will ensure that such Livestock that are entered onto the property by the Purchaser prior to settlement (refer clause 10.1 above) shall be free of all notifiable diseases and noxious weeds.11. Removal of Rubbish and Debris11.1 The Vendor agrees to dump all rubbish and old fencing wire in the dump on the property and will remove the old cars etc located in the small paddocks around the house from the property prior to settlement at the Vendors [sic] expense.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J

The plaintiffs on the evidence did not establish that the fencing between the paddock and the cottages had been in existence. No observation was made of such a fence and there is no reason to doubt Mrs Napper’s evidence. Accordingly, this aspect the claim for fencing costs should be rejected. There remained a claim for some work and re-stringing of some fencing that had been taken down to allow the access for the clearing sale. There was no specific evidence of the time involved or cost involved in this activity and in all the circumstances, it might be expected that there would be a cost. Having regard to the evidence I would make an allowance of $100. Conclusion I set aside the Magistrate’s award of damages of $14,858.50. Judgment should be entered for the plaintiffs for $3,705.81. I will hear the parties as to interest and costs.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Full text does not contain this section.