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

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

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: [2012] HCATrans 63
Decision Date

CaseChat Overview and Summary

The case of *Pamamull v Albrizzi (Sales) Pty Ltd* concerned a dispute between the vendor, Pamamull, and the purchaser, Albrizzi (Sales) Pty Ltd, regarding a contract for the sale of land. The High Court of Australia was tasked with determining the rights and obligations of the parties under the contract.

The central legal issue before the High Court was whether the purchaser was entitled to terminate the contract for the sale of land due to the vendor's failure to provide vacant possession by the settlement date. This involved an examination of the terms of the contract, particularly those relating to vacant possession, and the legal consequences of a breach of such a term.

The High Court held that the vendor's failure to provide vacant possession by the settlement date constituted a breach of a condition of the contract. Their Honours reasoned that the express terms of the contract clearly stipulated that vacant possession was to be given on settlement. As this condition was not met, the purchaser was entitled to terminate the contract. The court applied the principle that a failure to comply with an essential term of a contract, such as a condition precedent to settlement, gives the innocent party the right to terminate the agreement.

Consequently, the High Court dismissed the vendor's appeal, affirming the purchaser's right to terminate the contract and the consequent orders made by the lower courts.

Orders