ODGERS -v- BACICH INVESTMENTS PTY LTD [2007] WASC 269 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 269 (S)
Case No:	CIV:1895/2007	Heard:	29, 30 OCTOBER & 2 NOVEMBER 2007 & 23 JULY 2010
Coram:	EM HEENAN J	Delivered:	16/11/07
Supplementary Delivered:	11/08/10
No of pages:	6	Judgment Part:	1 of 1
Result:	The first defendant pay the plaintiffs' costs of the claim and the counterclaim, including reserved costs and the costs of this summons to be taxed if not agreed
Category:	B
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Parties:	DAVID MATTHEW GLENN ODGERS LINDA MAE WONG BACICH INVESTMENTS PTY LTD REGISTRAR OF TITLES
Catchwords:	Costs
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 1(3)
Case References:	McKechnie v Connell (Unreported, WASC, Library No 940023, 20 December 1993) Odgers v Bacich Investments Pty Ltd [2007] WASC 269; (2007) 35 WAR 320 Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ODGERS -v- BACICH INVESTMENTS PTY LTD [2007] WASC 269 (S) CORAM : EM HEENAN J HEARD : 29, 30 OCTOBER & 2 NOVEMBER 2007 & 23 JULY 2010 DELIVERED : 16 NOVEMBER 2007 SUPPLEMENTARY
DECISION : 11 AUGUST 2010 FILE NO/S : CIV 1895 of 2007 BETWEEN : DAVID MATTHEW GLENN ODGERS

LINDA MAE WONG

Plaintiffs

AND

BACICH INVESTMENTS PTY LTD

First Defendant

REGISTRAR OF TITLES

Second Defendant

Catchwords:

Costs

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1(3)

(Page 2)

Result:

The first defendant pay the plaintiffs' costs of the claim and the counterclaim, including reserved costs and the costs of this summons to be taxed if not agreed

Category: B

Representation:

Counsel:

Plaintiffs : Mr S V Forbes

First Defendant : Mr P N Poliwka

Second Defendant : No appearance

Solicitors:

Plaintiffs : Corser & Corser

First Defendant : Q Legal

Second Defendant : No appearance

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

McKechnie v Connell (Unreported, WASC, Library No 940023, 20 December 1993)
Odgers v Bacich Investments Pty Ltd [2007] WASC 269; (2007) 35 WAR 320
Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569

(Page 3)

1 EM HEENAN J: This action was tried as an urgent matter on 29 and 30 October and 2 November 2007. I gave reasons for decision on 16 November 2007: Odgers v Bacich Investments Pty Ltd [2007] WASC 269; (2007) 35 WAR 320. On that day judgment was entered for the plaintiffs and a series of declarations made which are contained in the judgment of the court of that date.

2 Those orders provided that the plaintiffs have liberty to relist the application for specific performance on notice and, pending that application, that both the plaintiffs and the first defendant have liberty to apply; that the first defendant's counterclaim be dismissed; and that all costs of the claim and the counterclaim be reserved.

3 This was an action brought by the plaintiffs, who were purchasers of certain…

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 Odgers v Bacich Investments Pty Ltd

Details

AGLC: Odgers v Bacich Investments Pty Ltd [2007] WASC 269 (S)
Case: [2007] WASC 269 (S)
Decision Date

CaseChat Overview and Summary

In Odgers v Bacich Investments Pty Ltd, the plaintiff, David Matthew Glenn Odgers, and his wife Linda Mae Wong, sued the first defendant, Bacich Investments Pty Ltd, seeking enforcement of a contract of sale for certain riverfront land at Claremont. The contract was conditional upon obtaining subdivisional approval and the provision of access to the land via a laneway. The first defendant rescinded the contract, claiming a reduction in the sale area would decrease the purchase price by more than 5%, justifying rescission. The case was heard in the Supreme Court of Western Australia, with the primary issue being whether the plaintiffs were entitled to specific performance with an abatement of the purchase price, given the anticipated reduction in the sale area. The court found that while some reduction in the sale area was likely, it was not significant enough to warrant a price reduction under the contract terms. Therefore, the contract remained enforceable as per its original terms. The court ruled that the plaintiffs were entitled to their costs, including those associated with the issue of specific performance with abatement, as it was necessary to address this issue to determine the enforceability of the contract.

The legal issues revolved around the enforceability of the contract under the anticipated reduction in the sale area and the appropriate remedy for the plaintiffs if the contract was to be enforced. The court had to decide whether the first defendant's rescission was justified and whether the plaintiffs were entitled to specific performance with an abatement of the purchase price. Additionally, the court needed to determine the appropriate costs order, considering whether the plaintiffs should be compensated for all costs incurred, including those related to the issue of specific performance with abatement. The court concluded that addressing the issue of specific performance with abatement was necessary to resolve the enforceability of the contract and the validity of the first defendant's counterclaim. Hence, the plaintiffs were entitled to their costs, including those associated with this issue.

Orders