Ormes v Lewis & 1 Ors [No 2] - [2006] NSWSC 659

CITATION: Ormes v Lewis & 1 Ors [No 2] [2006] NSWSC 659

HEARING DATE(S): 28 June 2006

JUDGMENT DATE :
4 July 2006

JURISDICTION: Common Law Division
Administrative Law List

JUDGMENT OF: Associate Justice Malpass at 1

DECISION: The appeal fails. The proceedings are dismissed. Save for one aspect, the Plaintiff is to pay the costs of the proceedings. I order that the Defendants pay the costs thrown away by reason of the vacation of the hearing date on 8 May 2006. The Exhibits may be returned.

CATCHWORDS: Ambit of statutory appeal - reopening of contract for sale of land - order for repayment of moneys - no error

LEGISLATION CITED: Consumer Credit Code 1996, ss 70, 71
Consumer, Trader and Tenancy Tribunal Act 2001, s 67(1)

PARTIES: Darren Ormes (Plainitff)
David Lewis (First Defendant)
Corinda Lewis (Second Defendant)
Consumer Trader and Tenancy Tribunal (Third Defendant)

FILE NUMBER(S): SC 30083/05

COUNSEL: Mr B J Sharpe (Plaintiff)
Ms J I Ghabrial (First and Second Defendants)

SOLICITORS: Cordato Partners (Plaintiff)
Legal Aid Office Wollongong (First and Second Defendants)
I V Knight, Crown Solicitor (Third Defendant)

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): 04/43987

LOWER COURT JUDICIAL OFFICER : Senior Member Connelly

LOWER COURT DATE OF DECISION: 18 July 2005

OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Associate Justice Malpass

Tuesday, 4 July 2006

30083 of 2005 Darren Ormes v David Lewis & 1 Ors [No 2]
JUDGMENT

1 His Honour: The Plaintiff and the Defendants entered into a Contract for the sale of land. It concerned a residential property near Dapto. The Plaintiff was the vendor. The Defendants were the purchasers.

2 I shall briefly mention certain of the relevant provisions. The price was to be payable by 300 monthly instalments of $1,600.00 over twenty-five years. The purchasers would not acquire any equity until payment of the final instalment. The Defendants were given a licence to occupy. They had the options of refinancing, earlier payment of the price or selling.

3 In the event of default, the Plaintiff was required to serve a Default Notice. Failure to comply with that Notice enabled the Plaintiff to serve a Notice of Termination. Clause 9.5 of the Contract specified consequences upon termination. One consequence was forfeiture to the Plaintiff of the deposit and all instalments paid under the Contract.

4 The Plaintiff came to terminate the Contract. At that time, moneys in the sum of $58,085.00 had been paid.

5 The Defendants brought an application in the Consumer, Trader and Tenancy Tribunal (the “Tribunal”). Relief was sought pursuant to ss 70 and 71 of the Consumer Credit Code 1996.

6 Section 70 enables the reopening of an unjust transaction. Sub-section (2) thereof specifies that in making a determination whether a term of a particular contract is unjust in the circumstances relating to it at the time it was entered into or changed, regard must be had to the public interest and to all the…

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.

Keep reading for free

Create a free CaseChat account to read Ormes v Lewis & 1 Ors [No 2] 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: [2006] NSWSC 659
Decision Date: 4 July 2006

CaseChat Overview and Summary

In the matter of Ormes v Lewis & 1 Ors, the court was presented with an appeal concerning the sale of land and the repayment of moneys. The case originated in the Supreme Court of Queensland, where the plaintiff, Ormes, sought to have a contract for the sale of land reopened, along with an order for the repayment of monies paid under the contract. The defendants, Lewis and another party, contested the plaintiff's claims. The court of appeal was tasked with determining whether the trial judge had erred in dismissing the plaintiff's claims.

The central legal issue before the court was whether the trial judge had correctly exercised his discretion in declining to reopen the contract for sale of land and ordering the repayment of moneys. The court was required to consider whether there was any error in the trial judge's reasoning or in the application of relevant legal principles. The court examined the arguments presented by both parties, focusing on the circumstances surrounding the contract and the grounds upon which the plaintiff sought to have it reopened.

The court of appeal found that the trial judge had properly exercised his discretion and that there was no error in his decision. The court concluded that the evidence did not support the plaintiff's contention that the contract should be reopened, and that the trial judge's findings on the matter were reasonable and justified. The court also found that the trial judge had correctly considered the relevant legal principles and had applied them appropriately to the facts of the case. Accordingly, the appeal was dismissed, and the orders of the trial judge were upheld.

As a result of the court's decision, the orders of the trial judge dismissing the plaintiff's claims were affirmed. The contract for the sale of land remained in place, and the defendants were not required to repay any monies to the plaintiff. The court's decision provided clarity on the scope of the trial judge's discretion in cases involving the reopening of contracts for the sale of land and the repayment of moneys.

Orders