Opr WA Pty Ltd v Marron

Link copied
Case Copied 21 min read

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   OPR WA PTY LTD -v- MARRON [2016] WASC 395

CORAM:   ACTING MASTER STRK

HEARD:   12 SEPTEMBER 2016

DELIVERED          :   5 DECEMBER 2016

FILE NO/S:   CIV 2002 of 2016

BETWEEN:   OPR WA PTY LTD as Trustee for OPR PROPERTY TRUST 

Plaintiff

AND

WAYNE CHARLES MARRON
First Defendant

AIM PTY LTD
Second Defendant [Action dismissed 9 August 2016]

Catchwords:

Summary judgment - 2011 general conditions - Joint form of general conditions for the sale of land - Deposit - Unfair contract terms - Failure to mitigate loss - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application granted

Category:    B

Representation:

Counsel:

Plaintiff:     Mr L Hager

First Defendant             :     Mr W Vogt

Second Defendant [Action dismissed 9 August 2016]  :        Not applicable

Solicitors:

Plaintiff:     Metaxas & Hager

First Defendant             :     Vogt Graham Lawyers

Second Defendant [Action dismissed 9 August 2016]  :        Not applicable

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

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Australian Competition and Consumer Commission v CLA Trading Pty Ltd [2016] FCA 377

Bank of Western Australia Ltd v Patton (Unreported, WASC, Library No 990111, 11 March 1999)

Director General of Fair Trading v First National Bank plc [2002] 1 AC 481

Dowling v Dalgety Australia Ltd [1992] FCA 35; (1992) 34 FCR 109

Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87

Hanel v O'Neill [2003] SASC 409

Jetstar Airways Pty Ltd v Free [2008] VSC 539

Mann Judd (a firm) v Paper Sales Australia (WA) Pty Ltd (Unreported, WASCA, Library No 980565)

McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457

Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109

SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138

Sotiros Shipping Inc v Sameiet Solholt [1983] 1 Lloyd's Rep 605

Sydney Developments Pty Ltd v Perry Properties Pty Ltd [2016] NSWSC 515

Tropical Traders Ltd v Goonan (1964) 111 CLR 41

Wireton Holdings Pty Ltd v Price [2011] ACTSC 65

  1. ACTING MASTER STRK:  By chamber summons dated 8 July 2016 the plaintiff (OPR) seeks summary judgment.

  2. OPR's claim relates to a contract of sale (Contract) dated 6 September 2014, made between OPR as seller and the first defendant (Mr Marron), as buyer.

Contract

  1. Subject to some variations, the '2011 general conditions - joint form of general conditions for the sale of land' (General Conditions) form part of the Contract.[1]

    [1] Variations to the General Conditions can be found at cl 12.2 of the Contract:  affidavit of Timothy Oscar Willing sworn 8 July 2016, attachment '1', page 22.

  2. The Contract concerned a property known as lot 24 on strata plan 65318 and being certificate of title vol 2897 folio 468 (also known as Apartment 24, The Whitfield, 78 ‑ 80 Old Perth Road, Bassendean, Western Australia) (Property).

  3. Under the Contract, the purchase price for the Property was $515,000, and a deposit of $51,500…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Opr WA Pty Ltd v Marron and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2016] WASC 395
Decision Date

CaseChat Overview and Summary

The case of Opr WA Pty Ltd v Marron was before the Supreme Court of Western Australia. The plaintiff, Opr WA Pty Ltd, sought summary judgment against the defendant, Marron, regarding a dispute involving the sale of land under the 2011 general conditions, specifically concerning the deposit and the enforceability of certain terms. The defendant argued that some terms of the contract were unfair and, alternatively, sought a reduction of the deposit. The plaintiff contended that the defendant had failed to mitigate their loss, which was a necessary defence to any reduction in the deposit.

The primary legal issues the court needed to address were the enforceability of the terms of the contract under the Australian Consumer Law, and whether the defendant had any grounds to seek a reduction of the deposit. Additionally, the court had to determine whether the defendant had failed to mitigate their loss, which would impact any claim for a reduction in the deposit. The enforceability of the terms hinged on whether they were unfair under the Australian Consumer Law and whether they contravened the provisions of the standard form contract.

The court first considered the enforceability of the terms under the Australian Consumer Law. It examined whether the terms were unfair and whether they contravened the standard form contract. The court found that the terms were not unfair and were consistent with the standard form contract. The court also assessed whether the defendant had failed to mitigate their loss, which would affect any claim for a reduction of the deposit. It determined that the defendant had not taken reasonable steps to mitigate their loss, thus impacting any potential reduction in the deposit. Consequently, the court found in favour of the plaintiff and dismissed the defendant's claims.

The court ordered that the defendant pay the full deposit to the plaintiff and that the defendant bear the costs of the proceeding. The court held that the terms of the contract were enforceable and that the defendant's failure to mitigate their loss precluded any reduction in the deposit. This decision reinforces the importance of adhering to contractual terms and taking reasonable steps to mitigate loss in property transactions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.