| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : O'CONNOR & ANOR -v- DUCKWORTH [2009] WADC 68 CORAM : WISBEY DCJ HEARD : 19 JANUARY 2009 DELIVERED : 14 MAY 2009 FILE NO/S : CIV 1260 of 2007 BETWEEN : RAYMOND JAMES O'CONNOR VESNA FRANCIS O'CONNOR
Plaintiffs
AND
NEIL JAMES DUCKWORTH
Defendant
FILE NO/S : CIV 1261 of 2007 BETWEEN : THOMAS JOHN STAMPALIA Plaintiff
AND
NEIL JAMES DUCKWORTH
Defendant
(Page 2)
Catchwords: Vendor and purchaser - Agreement for sale of land other than as a lot - Incorporation of the 2002 General Conditions of Sale - Settlement within 30 days of title being in order for dealing - Turns on own facts Legislation: Nil Result: Judgment for damages for each plaintiff Representation: CIV 1260 of 2007 Counsel:
Plaintiffs : Mr M A Detata
Defendant : No appearance
Solicitors:
Plaintiffs : O'Connor Partners Commercial Lawyers
Defendant : Not applicable
CIV 1261 of 2007 Counsel:
Plaintiff : Mr M A Detata
Defendant : No appearance
Solicitors:
Plaintiff : O'Connor Partners Commercial Lawyers
Defendant : Not applicable
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 WISBEY DCJ: At a listing conference before Deputy Registrar Hewitt on 22 September 2008 it was ordered that these actions be tried at the same time and before the same Judge, and the joint trial listed for 19 - 21 January 2009. The defendant was represented at the listing conference by Ms Gomez of Stables Scott Solicitors.
2 On the same day the Deputy Registrar made an order on the ex parte application of Stables Scott that upon compliance with the requirements of O 8 r 7 of the Rules of the Supreme Court it cease acting as the solicitors on the record for the defendant. A certificate of compliance, incorrectly recording the date of the order as 10 September 2008, was filed on 28 October 2008. It will be apparent from the foregoing that the defendant, being legally represented at the listing conference, had notice of the allocated trial dates. 3 When the actions were called on for hearing on 19 January there was no appearance by or representation for the defendant, and pursuant to O 34 r 2 of the Rules of the Supreme Court the trial of both actions proceeded in his absence. 4 The cause of action in each action is identical, it being alleged that: (1) The defendant is the registered proprietor of a parcel of land which pursuant to an agreement dated 6 August 2004 he contracted to sell to the plaintiff. (2) Settlement was to occur within 30 days of the title being in order for dealing (the land being the subject of a proposed subdivision). (3) The title was in order for dealing on 5 January 2007. (4) The plaintiffs have at all times been ready, willing and able to complete the sale but in breach of the agreement the defendant has neglected and/or refused to do so. 5 The defence in each action admits the agreement for sale; that settlement was to occur within 30 days of the title being in order for dealing; that by letter dated 28 February 2007 from the solicitors for the plaintiffs the defendant was requested to execute a registrable transfer; that the defendant did not execute the transfer as requested; that a notice of default dated 26 March 2007 was served by the plaintiff; and that the defendant has refused to complete the sale. The defendant did not plead to par 4 of the statement of claim which asserts that the certificate of title for the relevant land was issued by the Registrar of Titles on 5 January 2007. (Page 4)
6 Essentially the matters put in issue in each defence are: (1) A denial that the plaintiffs paid the purchase price to the defendant as recorded in the agreement. (2) An assertion that the agreement terminated because the land was not a lot, and pursuant to the general conditions (incorporated in the agreement) it was conditional upon the subdivision plan being in order for dealing within three months after the date of endorsement of approval by the Planning Commission in accordance with cl 13.3(a)(i) of the general conditions (cl 13.3); and that was a condition precedent, was not fulfilled, and as a consequence the agreement failed and ceased to have effect ab initio. 7 Raymond James O'Connor, one of the plaintiffs in action No 1260 of 2007, gave evidence in support of his action and the plaintiff in action No 1261 of 2007, having executed the relevant contract the subject of that action pursuant to a power of attorney registered No H258356 conferred on him by Stampalia on 1 October 1999. He produced and proved the agreement relevant to each action. 8 He confirmed that each agreement had been prepared by, and that the handwritten particulars in each agreement, was that of the defendant. Also that the purchase price in each case had been met by an agreed reduction from an amount owed by the defendant to Mr O'Connor for commission. 9 In addition the plaintiffs produced correspondence which demonstrates that upon the issue of the title in each case efforts were made to have the defendant execute an instrument of transfer, and that as a consequence of his neglect or refusal to execute the transfer and complete the sale, a notice of default was served in accordance with the terms of the contract. 10 Although the plaintiffs in each action seek an order for specific performance, it is apparent from the certified copy of the certificate of title that the land is encumbered and it is not possible for the defendant to convey title to the plaintiffs. In all the circumstances the plaintiffs in each action seek damages in lieu of specific performance (an alternate claim in the statement of claim). 11 The plaintiffs called Simon James Brown, a licensed valuer with particular interest in regional properties, including hobby farms. Mr Brown carried out a valuation of the property the subject of each (Page 5)
action. His valuation of Lot 201 (the O'Connor land) was $290,000 as at July 2008 and of Lot 365 (the Stampalia land) $225,000 as at that date. Although the valuations were made in early to mid-2008 I accept that the valuations accurately reflect the position as at February 2007 when the breach occurred. 12 The issue as to payment of the purchase price by the plaintiffs in each case can be shortly disposed of because not only did Mr O'Connor give evidence that the purchase price was satisfied by the agreed reduction of the nominated amount from the monies owed by the defendant to Mr O'Connor, but in both cases the agreement prepared by the defendant acknowledges payment, and the particular acknowledgement recital is in the defendant's handwriting. 13 It is not an issue on the pleadings, and in any event was clearly established by evidence given before me, that the plaintiffs in each case have at all times been ready and willing to complete the agreement according to its terms. 14 The real issue before the court is whether settlement was governed by cl 13 of the general conditions, and whether the agreement failed by reason of non-compliance therewith. 15 The agreement provides in cl 3 that "the 2002 general conditions are incorporated into this contract so far as they are not varied by or inconsistent with the express terms of this contract". Clause 13 of the general conditions relevantly provides: "13.1 When clause applies This clause applies only if the Land is not a Lot at the Contract Date. 13.2 Contract conditional The Contract is conditional on the following. (Page 6)
13.3 Further condition for subdivision (a) The Contract is also conditional on the following. (b) Each period specified in subclause (a) will, if applicable, be extended as specified in: 13.4 Application and Subdivision Plan (Page 7)
Subdivision Lot from the Original Land; and (2) subject to the approval of the Planning Commission to the subdivision, arrange for preparation of a Subdivision Plan to be: Clause 13.7 provides generally for termination of the agreement in the event of the non-satisfaction of any of the above conditions. 16 The agreement however contains a specific provision that settlement was to occur within 30 days of the title being in order for dealing. Insofar as the provisions of cl 13 of the general conditions are inconsistent with that express provision, and that does not seem to be the case, the express provision applies. The clear intention of the parties in respect of each agreement was that the defendant would convey to the plaintiffs the land concerned in part satisfaction of commission owed by him to Mr O'Connor. It was plainly intended that the land would be transferred within 30 days of the title being in order for dealing, whenever that might be. Were the position otherwise, it would be for the defendant to prove by the adduction of credible evidence that the agreement came to an end by the reason of the provisions of cl 13 without default on his part, and that there was then an election by a party to the agreement to terminate it. There is no such evidence before me. 17 I am satisfied on the evidence that the defendant is in default and that the plaintiffs in each case are entitled to damages. The measure of damages is the value of the land at the date when the breach occurred. In respect to the O'Connor land that was $290,000; and in respect to the Stampalia land $225,000. The plaintiffs in each action also claim interest, but having regard to the fact that there appears to have been a reduction in the value of the land over the period between the anticipated settlement date and trial, I decline to award interest. 18 In action CIV 1260 of 2007 there will be judgment for the plaintiffs in the sum of $290,000 and costs to be taxed. (Page 8)
19 In action CIV 1261 of 2007 there will be judgment for the plaintiff in the sum of $225,000 and costs to be taxed.
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