Parente v Bell - [1967] HCA 19

HIGH COURT OF AUSTRALIA

Windeyer J.

PARENTE v. BELL

(1967) 116 CLR 528

6 June 1967

Judicial Precedent—Damages

Judicial Precedent—Original jurisdiction—High Court Justice sitting in a State—Decision of Full Court of State followed as persuasive authority. Damages—Personal injuries—Economic loss—Admissibility of evidence—Possibility of continued inflation as factor in assessment.

Decision

June 6.
WINDEYER J. In this action the plaintiff sues for damages for personal injuries suffered by him as a result of an accident. A car driven by one Jeffrey John Bell came into collision with a car driven by the plaintiff at Southport in the State of Queensland on 21st December 1964. As a result of the accident Bell was killed and the plaintiff was badly hurt. (at p529)

2. The defendant is the father and administrator of the intestate estate of the deceased man. The case is within the original jurisdiction of this Court, as it was proved that the defendant is and was at all material times a resident of New South Wales, as was his deceased son ; and the plaintiff is, and when the action was instituted was, a resident of Queensland. (at p529)

3. At the outset I questioned whether the proceedings were maintainable having regard to s. 15D of The Common Law Practice Act (Q.), as amended by and affected by The Law Reform (Limitations of Actions) Act of 1956 (Q.). The action was not in fact commenced within six months after the grant of letters of administration to the defendant. It was, however, pointed out to me that the Supreme Court of Queensland had held in Minchin v. Public Curator of Queensland (1964) Qd R 545, at p 552 that the effect of the 1956 amendment was to enable an action of this kind to be brought at any time within three years of the cause of action arising. The question of statutory construction resolved in that way by that decision is unusual. I had at first thought that the effect of the amendment of s. 15D was not to alter the requirement that an action against a personal representative be brought within six months of the grant of administration. It is surprising that a personal representative should not know within some limited period of time of what claims there may be against the estate ; and I at first sight thought that the manner of the amendment in 1956 involved a recognition still of the executor's year. However, the reasoning of the judgment of the Full Court of Queensland is highly persuasive and, sitting as I am in Queensland to exercise the original jurisdiction of this Court, I think I need not further consider the question. As I said in the course of the proceedings I propose to follow the decision of the Supreme Court. Moreover it was not alleged in the pleadings that the action was out of time ; and it may be that even if the time limit of six months still prevailed it should be regarded as a…

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.

Continue reading Parente v Bell

Details

AGLC: Parente v Bell [1967] HCA 19
Case: [1967] HCA 19
Decision Date: 6 June 1967

CaseChat Overview and Summary

In *Parente v Bell*, Windeyer J of the Supreme Court of New South Wales considered a dispute concerning a contract for the sale of land. The plaintiff, Mr. Parente, sought to recover a deposit paid under a contract for the sale of a property to the defendant, Mr. Bell. The central issue was whether the contract had been validly rescinded by the vendor, Mr. Bell, due to the purchaser's alleged failure to comply with a condition precedent.

The court was required to determine whether the purchaser, Mr. Parente, had breached the contract by failing to obtain finance within the stipulated timeframe, thereby entitling the vendor to terminate. Specifically, the court had to interpret the terms of the contract relating to the finance clause and assess whether the purchaser had taken all reasonable steps to secure the necessary loan. The question also arose as to whether the vendor had waived any right to rely on the purchaser's alleged default.

Windeyer J found that the purchaser had made reasonable efforts to obtain finance, and that the vendor's conduct amounted to a waiver of the right to terminate the contract based on the purchaser's failure to meet the finance condition. His Honour applied the principles of contract law concerning conditions precedent and waiver, emphasizing that a party cannot insist on a condition if their own actions have prevented its fulfilment or if they have indicated an intention to proceed despite non-fulfilment.

Consequently, the court ordered that the deposit paid by the plaintiff be returned, and that the defendant pay the plaintiff's costs.

Orders