Opr WA Pty Ltd v Marron - [2016] WASC 395

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

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

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

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.

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Details

Case: [2016] WASC 395
Decision Date: 5 DECEMBER 2016

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