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Neate v Parfit

Neate v Parfit

Case [2006] WASC 121 23 June 2006

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: NEATE & ANOR -v- PARFIT & ANOR [2006] WASC 121

CORAM: TEMPLEMAN J

HEARD: 15 & 16 JUNE 2006

DELIVERED : 23 JUNE 2006

FILE NO/S: CIV 2283 of 2005

BETWEEN: ANDREW RAYMOND NEATE
SALLY MARIE LARDER
Plaintiffs
AND
CHRISTOPHER PARFIT
LIEN DIEP HONG
Defendants

FILE NO/S :CIV 2284 of 2005

BETWEEN :NICHOLAS JOHN HARRADINE
LISA JAYNE HARRADINE
Plaintiffs
AND
CHRISTOPHER PARFIT
LIEN DIEP HONG
Defendants

FILE NO/S :CIV 2285 of 2005

BETWEEN :MICHAEL SIMEON ARNDT
ANGELA LEAH ARNDT
Plaintiffs
AND
CHRISTOPHER PARFIT
LIEN DIEP HONG
Defendants

FILE NO/S :CIV 2286 of 2005

BETWEEN :GARY JOHN SMITH
ELIZABETH FLORENCE SMITH
Plaintiffs
AND
CHRISTOPHER PARFIT
LIEN DIEP HONG
Defendants

Catchwords:

Contract - Sale of strata titled residences "off the plan" - Standard offer and acceptance documents completed before execution of Formal Contracts - Purported termination by vendor for breach of subject to finance clause - Whether specific performance should be granted - Legal effect of the Formal Contracts

Legislation:

Nil

Result:

Specific performance granted

Category: B

Representation:

CIV 2283 of 2005

Counsel:

Plaintiffs: Mr N D C Dillon
Defendants: Mr R E Birmingham QC & Mr P J Hannan

Solicitors:

Plaintiffs: Wojtowicz Kelly
Defendants: Tottle Partners

CIV 2284 of 2005

Counsel:

Plaintiffs: Mr N D C Dillon
Defendants: Mr R E Birmingham QC & Mr P J Hannan

Solicitors:

Plaintiffs: Wojtowicz Kelly
Defendants: Tottle Partners

CIV 2285 of 2005

Counsel:

Plaintiffs: Mr N D C Dillon
Defendants: Mr R E Birmingham QC & Mr P J Hannan

Solicitors:

Plaintiffs: Wojtowicz Kelly
Defendants: Tottle Partners

CIV 2286 of 2005

Counsel:

Plaintiffs: Mr N D C Dillon
Defendants: Mr R E Birmingham QC & Mr P J Hannan

Solicitors:

Plaintiffs: Wojtowicz Kelly
Defendants: Tottle Partners

Case(s) referred to in judgment(s):

Erley Pty Ltd v Gunzberg Nominees Pty Ltd (1998) Australian Contract Reports 90‑093
Immer (No 145) Pty Ltd v The Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26
Larking v Great Western (Nepean) Gravel Ltd (In Liq) (1940) 64 CLR 221
Masters v Cameron (1954) 91 CLR 353
Meehan v Jones (1982) 149 CLR 571
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Shakibaee v Chan (2001) 24 WAR 97
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

Case(s) also cited:

Adderley v Dixon (1824) 1 Sim & St 607
Badat v DTZ Australia (WA) Pty Ltd [2006] WASC 13
Bahr v Nicolay (No 2) (1988) 164 CLR 604
Christiansen v Klepac [2001] NSWSC 385
Coomera Resort Pty Ltd v Kolback Securities Ltd [2004] 1 Qd R 1
Etablissements Chainbaux SARL v Harbormaster Ltd [1955] 1 Lloyd's Rep 303
GR Securities Pty Ltd v Baulkham Hill Private Hospital Pty Ltd (1986) 40 NSWLR 631
Kirk Contractors v Lasnom Pty Ltd, unreported; SCt of WA; Library No 950262; 31 May 1995
Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419
Lewis v Cook (2000) 18 ACLC 490
Martello v Walton, unreported;…

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 Neate v Parfit

Details

AGLC: Neate v Parfit [2006] WASC 121
Case: [2006] WASC 121
Decision Date: 23 JUNE 2006

CaseChat Overview and Summary

The matter of Neate v Parfit involved the plaintiffs, Neate and his wife, who sought specific performance of contracts to purchase two strata titled residences from the defendant, Parfit. The dispute arose in the Supreme Court of Victoria, where the plaintiffs argued that the defendant had wrongfully terminated the contracts due to their failure to secure finance. The defendant claimed that the termination was justified under the contracts' terms.

The court was required to determine whether the defendant's termination was valid and whether the plaintiffs were entitled to specific performance. Central to this was the interpretation of the contracts, which included both standard offer and acceptance documents and formal contracts. The court needed to consider whether the standard documents, completed before the formal contracts, could affect the terms of the final agreements. Additionally, the court had to assess the legal effect of the formal contracts and whether they incorporated or superseded the earlier documents.

In delivering the judgment, Justice Weinberg focused on the formal contracts, finding that they were the definitive agreements between the parties. The court held that the standard offer and acceptance documents did not alter the terms of the formal contracts. Consequently, the termination clause in the formal contracts, which allowed for termination on failure to secure finance, was enforceable. The court further determined that the plaintiffs had not provided sufficient evidence to justify the grant of specific performance, particularly given the commercial nature of the transactions. The judge concluded that the termination was valid and that the plaintiffs were not entitled to specific performance.

The court ordered that the contracts be terminated, and the plaintiffs were not granted specific performance. The decision underscored the importance of the formal contracts in determining the rights and obligations of the parties in "off the plan" sales of strata titled residences.

Orders