Pamamull v Albrizzi (Sales) Pty Ltd

[2012] HCATrans 63

[2012] HCATrans 063

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M136 of 2011

B e t w e e n -

VISHINO PAMAMULL

Applicant

and

ALBRIZZI (SALES) PTY LTD

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 MARCH 2012, AT 9.31 AM

Copyright in the High Court of Australia

MR P.N. WIKRAMANAYAKE, SC:   If the Court pleases, I appear for the applicant, with my learned friend, MR I.W.D. UPJOHN.  (instructed by Ravi James)

MR C.L. PANNAM, QC:   May it please the Court, I appear with my learned friend, MR M.S. OSBORNE on behalf of the respondent.  (instructed by CIE Legal)

HAYNE J:   Yes, Mr Wikramanayake.

MR WIKRAMANAYAKE:   Yes.  Your Honours, first of all I would like to apologise to the Court for the lateness in the delivery of the submissions.  It was a simple question of human error, your Honour. 

HAYNE J:   Yes.

MR WIKRAMANAYAKE:   Your Honour, in this matter, the plank on which the respondent rests it case is the case of Flight v Booth and it is in our submission in great earnestness that Flight v Booth has no application in the present case because there is no error or misdescription in the title to the property.  In fact, if I might take the Court to page 86 of the application book where the property address is described as:

the land together with any improvements known as 272 Toorak Road, South Yarra -

That was the property that was delivered to us.  The only question that arises is that there was a portion of the property, the building on the property, on the next door land.  So the plaintiff could not make title to the property.

CRENNAN J:   This is the encroachment of the order of eight centimetres?

MR WIKRAMANAYAKE:   Yes.  In Perrin v Reynolds, your Honour, the case we refer you to, the encroachment was, I think, 10 inches and the court held that that was substantial because the purpose for which he bought this was to develop the property and the evidence given by the client was that he was not able to get council permission to develop the property.

KIEFEL J:   The encroachment was by reason of the dwelling, was it not?

MR WIKRAMANAYAKE:   Yes, the dwelling.

KIEFEL J:   The dwelling was going to be demolished for the purpose of the development.

MR WIKRAMANAYAKE:   Yes.  But, your Honours, the council would not give us permission because of that initial problem.  We could not get permission from the council to demolish the dwelling.  Now, if I take your Honours to the case of Perrin v Reynolds – I might take your Honours to Mr Voumard’s 2nd edition of the Sale of Land Act, where Mr Voumard states at page 252:

These cases of misdescription must be distinguished from cases of defective title; for if the vendor has no title even to a small but material part of the subject matter, the purchaser will be entitled to rescind.

That really is our first argument, that there is a defect in the title to the property.  Now, this was followed up in Perrin v Reynolds, where Mr Justice Webb stated at page 444:

In a case like the present, of a sale by feet and inches of town property with buildings on it, the use of the expression in the contract “be the said measurements a little more or less” would not cover a case where one of the walls of the building is outside the title . . . Nor can it be regarded as misdescription within the clause in the contract for compensation . . . It is a case of inability to make title to a material part of the premises sold; and, in the old equity jurisdiction, the only course would have been to have dismissed the plaintiff’s bill without costs ‑ ‑ ‑

HAYNE J:   Was this sale a sale by measurement?

MR WIKRAMANAYAKE:   Yes, it was a sale by measurement.

HAYNE J:   Why?  Was not the subject matter an address in Toorak Road?

MR WIKRAMANAYAKE:   Yes, it was the address in Toorak Road and they undertook to give…..title to that property.

HAYNE J:   Yes, and therefore why was it a sale by measurement?

MR WIKRAMANAYAKE:   Yes, but, no, your Honour, the point I was making is that it was not a sale by misdescription.

HAYNE J:   Yes.

MR WIKRAMANAYAKE:   Now, the next point we wanted to make is the question of the identity clauses.  Those are identity clauses, your Honour, to be found in contracts for the sale of land all over Australia and it would be my submission.....that the Court of Appeal failed to properly consider the decision of the Court of Appeal in England in Lowe v Lombank where, in similar circumstances, this old lady admitted that she had examined the property – she acknowledged that she had examined the property, whereas in Lowe v Lombank – in our case there is an acknowledgement in the identity clause, your Honour.  There is no evidence that our client measured the property or inspected it or did anything of the kind.  So, in Lowe v Lombank, Mr Justice Diplock stated, in regard to a condition in identical form:

This curiously drafted clause was never brought to the notice of the plaintiff and its effect was not made clear to her.  Nor, despite the efforts of counsel for the defendants, has it been made clear to us . . . To call it an agreement as well as an acknowledgement by the plaintiff cannot convert a statement as to past facts known by both parties to be untrue into a contractual obligation –

It would be our submission, your Honour, applying those principles that the identity clause and the omission of identity because the property did not correspond to the title.  Then, your Honour, the third point we want to make is that if A buys a property for a particular purpose and that purpose cannot be realised, A is entitled to rescind the contract and we refer your Honours to the case of Puckett and Smith’s Contract, but the Court of Appeal dismissed that submission fairly summarily by saying, at page 67:

Counsel then submitted that if a property is bought for a purpose and the purpose cannot be realised, the purchaser is entitled to rescind the contract . . . For, in truth, what this amounts to is that the appellant purchased with a purpose in mind, which must commonly be the case with any purchaser.

That is not a correct statement of fact because properties can be bought for investment, they can be bought for letting, they can be bought for residence, they can be bought for any purpose and in Puckett and Smith’s Contract the Court of Appeal in England said that where a property is bought for a particular purpose and that purpose is not realised then you are entitled to rescind the contract.

Now, your Honour, in regard to the question of the fact that we were not able to develop the property, the client stated before Justice Pagone that he could not – that there was a variation of title and he could not develop the property. This what the Court of Appeal said:

Further, the contention, which goes to materiality and substantiality‑ ‑ ‑ 

HAYNE J:   Where are you reading from?

MR WIKRAMANAYAKE:   I am sorry, your Honours, page 66.

HAYNE J:   Yes.

MR WIKRAMANAYAKE:  

Further, the contention, which goes to materiality and substantiality, that the defect has prevented development of the land is rested on no more than a response to a query, apparently made at some time after entering into the contract, as distinct from an actual application –

Now, the burden of our song is, your Honours, we were not given a chance to put our case before Mr Justice Pagone.  We were not given a chance to put our case before the Court of Appeal, and we would ask your Honours to give us a chance now to put our case before a properly constituted Bench of the Supreme Court. 

HAYNE J:   Does the application book reveal how long this case had been fixed for hearing on the day on which – how long before the day it came on for hearing had been fixed?

MR WIKRAMANAYAKE:   Yes, I think it was fixed for hearing in December for file in February.  But my client, according to the evidence, was in India and only returned at the end of February and he was only told then by his solicitors.

HAYNE J:   Is it the case that the applicant sought to change his legal advisers because either he or his legal advisers felt no confidence in the other?

MR WIKRAMANAYAKE:   Yes.

HAYNE J:   Is it not the fact then that this case was not ready for trial on the appointed day for reasons wholly within the control of the applicant?

MR WIKRAMANAYAKE:   Applicant’s solicitors, your Honour. 

HAYNE J:   Where then lies the want of procedural fairness which the Court of Appeal said occurred?

MR WIKRAMANAYAKE:   Yes.  The Court of Appeal said that he should not have a reply.

HAYNE J:   The Court of Appeal said there was no defence, but the Court of Appeal also found that there had been a denial of procedural fairness at first instance.  Where was that denial of procedural fairness?  The mere fact that a case is tried on the day appointed does not of itself, at least to me, bespeak want of procedural fairness.

MR WIKRAMANAYAKE:   But, your Honour, all of us have at some point had to appear against an unrepresented litigant - and an unrepresented litigant who knows nothing about litigation - who turns up in court and then is told “Look, we have got to conduct your case”.  Is that not a question of procedural unfairness, your Honour - getting him to conduct a case when he knows nothing about it? 

There is one more point I just wanted to make in conclusion.  Your Honour, instead this Court said alternatively if the Full Court is properly to be understood as saying no more than a new trial would make no difference to the result, their Honours failed to apply the current criterion.  All the appellant needed to show was a denial of natural justice denied him the possibility of a successful outcome. 

In order to negate the possibility it was as they have said necessary for the Full Court to find a properly conducted trial could not have produced a different result.  So, your Honour, our simple position is if you are given a chance to conduct this trial it would have produced a completely different result, for the reasons we have said.  Your Honour, those are our submissions.

HAYNE J:   Yes, thank you, Mr Wikramanayake.  We will not trouble you, Dr Pannam.

The Court of Appeal correctly concluded that the applicant had no arguable defence to the claims the respondent had made in its action against him in the Supreme Court of Victoria.  This being so, it would not be in the interests of either justice generally or justice in this particular case that there be a grant of special leave.

We are not to be taken as endorsing the Court of Appeal’s conclusion that the trial judge denied the applicant procedural fairness by refusing the applicant an adjournment of the trial.  The applicant was not ready to proceed on the day fixed for the trial to begin for reasons that were wholly within his control.  Neither the fact that the applicant’s then solicitor withdrew on the morning of the trial or any of the other circumstances that then attended the matter required the conclusion that the trial should be adjourned. 

Special leave to appeal is refused with costs.

The Court will adjourn to reconstitute.

AT 9.47 AM THE MATTER WAS CONCLUDED