Legal Research
Cases
Nelson v Bellamy

Nelson v Bellamy

Case [2000] NSWSC 182 3 March 2000

No judgment structure available for this case.

Type to search within this case.

CITATION: LORI ANN NELSON v LYNETTE MARIE BELLAMY [2000] NSWSC 182

CURRENT JURISDICTION: EQUITY

FILE NUMBER(S): SC 1844/1997

HEARING DATE(S): 3,4,5 MARCH and 31 MAY 1999

JUDGMENT DATE: 3 March 2000

PARTIES :

LORI ANN NELSON (Plaintiff)
LYNETTE MARIE BELLAMY (Defendant)

JUDGMENT OF: Simos J

COUNSEL : P.Le Gay Brereton (Plaintif)
M.A.Twigg, Solicitor (Plaintiff)
G.E.Underwood (Defendant

SOLICITORS: Adrian Twigg & Co. (Plaintiff)
Matthews (Defendant)

CATCHWORDS: Vendor and purchaser - Sale of land - Vacant possession - Vendor able to give vacant possession notwthstanding certain items remaining on land at completion date - Contract - Condition or warranty - Breaches of contract alleged were breaches of warranty only - Purchaser not entitled to terminate - Contract - Wrongful termination by purchaser - Vendor entitled to terminate and to claim damages - Conveyancing Act 1919 - Section 55(2A) - Purchaser entitled to return of deposit - Fair Trading Act 1987 - Alleged representations either true or made with reasonable ground or not established - Defendant's cross-claim dismissed.

LEGISLATION CITED: Fair Trading Act 1987
Conveyancing Act 1919

CASES CITED: Argy v Blunts & Lane Cove Real Estate Pty. Limited (1990) 26 FCR 112
Cumberland Consolidated Holdings Limited v Ireland (1946) KB 264
C.Czarnikow Ltd. v Koufos (1969) 1 AC 350
Davies v Hastwel-Batten (1985) NSW ConvR 55-261
DTR Nominees Pty. Limited v Mona Homes Pty. Limited (1978) 138 CLR 423
Eighth SRJ Pty. Limited v Merity (Young J, 25 March 1997, unreported)
Franich v Swannel (1993) 10 WAR 459
Hadley v Baxendale (1854) 9 ExCh 341; 156 ER 145
Hongkong Fir Shipping Co. Limited v Kaasaki Kisen Kiasha Limited (1962) 2 QB 26
Jampco Pty. Limited v Cameron (No. 2)(1985) 3 NSWLR 391
Johnson v Agnew (1980) AC 367
Liverpool Holdings Limited v Gordon Lynton Car Sales Pty. Limited (1978) QdR 279
Lucas & Tait (Investments) Pty. Limited v Victoria Securities Limited (1973) 2 NSWLR 268
Mallick v Parish (1916) 16 SR(NSW) 305
Murdaca v Fisher (1981) 2 BPR 9287
Noble v Edwards (1877) 5 ChD 378
O'Brien v Smolonogov (1983) 53 ALR 107
Point Glebe Pty. Limited v Lidofind Pty. Limited (1988) NSW ConvR 55-412
Tramways Advertising Pty. Limited v Luna Park (NSW) Ltd. (1938) 38 SR(NSW) 632

DECISION: Plaintiff (Vendor) entitled to terminate contract and damages; cross-claim under Fair Trading Act 1987 dismissed.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SIMOS J

FRIDAY, 3 MARCH 2000
(NO. 1844/1997): LORI ANN NELSON v LYNETTE MARIE BELLAMY

JUDGMENT

The Proceedings
Statement of Claim

1 HIS HONOUR: By statement of claim filed 23 May 1997 Lori Ann Nelson, the plaintiff, alleged against Lynette Marie Bellamy, the defendant, that by contract for sale of land dated 19 September 1996, ("the contract”), the plaintiff agreed to sell and the defendant agreed to purchase the property situate at and known as Villa Tuscany B/134 Ocean View Drive, Wamberal in the State of New South Wales, being Lot B. in Plan 341313 ("the land") for a price of $285,000. The plaintiff further alleged that pursuant…

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 Nelson v Bellamy

Details

AGLC: Nelson v Bellamy [2000] NSWSC 182
Case: [2000] NSWSC 182
Decision Date: 3 March 2000

CaseChat Overview and Summary

In the case of Nelson v Bellamy, the plaintiff sought to recover damages and terminate a contract for the sale of land following alleged breaches of contract by the defendant. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Nelson, claimed that the defendant, Bellamy, failed to deliver vacant possession of the property as stipulated in their contract, and that there were breaches of contract that warranted termination. The defendant, in turn, argued that any issues were minor and constituted breaches of warranty only, not justifying termination. Additionally, the defendant claimed that the plaintiff had wrongfully terminated the contract, entitling the defendant to terminate and seek damages.

The court had to determine whether the issues raised by the plaintiff were sufficiently serious to constitute breaches of condition that would allow for termination, or if they were minor breaches of warranty. The court also needed to assess if the plaintiff's termination was justified and whether the defendant's cross-claim under the Fair Trading Act 1987 was valid. The court held that the issues raised by the plaintiff did not amount to breaches of condition, but rather were breaches of warranty. As such, the plaintiff was not entitled to terminate the contract. However, since the plaintiff had wrongfully terminated the contract, the court found that the defendant was entitled to terminate and claim damages. Under the Conveyancing Act 1919, the plaintiff was required to return the deposit to the defendant. The defendant's cross-claim was dismissed as the alleged representations were either true or made with reasonable grounds, or not established.

The court's final orders included the termination of the contract by the defendant, the return of the deposit by the plaintiff to the defendant, and the dismissal of the defendant's cross-claim. The defendant was also entitled to claim damages for the wrongful termination by the plaintiff. The court did not find merit in the defendant's claims under the Fair Trading Act 1987, and thus those claims were dismissed.

Orders