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Parry v Navaroo Constructions Pty Limited

Parry v Navaroo Constructions Pty Limited

Case [2013] NSWSC 249 27 March 2013

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Parry v Navaroo Constructions Pty Limited [2013] NSWSC 249
Hearing dates: 06/03/2013
Decision date: 27 March 2013
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The appeal is upheld.
(2) The decision of his Honour Magistrate Bone dated 2 October 2012 is set aside.
(3) Judgment is entered in favour of the plaintiffs/cross respondents. The defendant/cross claimant is to pay the deposit sum of $21,200 to the plaintiffs/cross respondents with costs and interest.
(4) The defendant is to pay the plaintiffs' costs as agreed or assessed.

Catchwords: APPEAL FROM LOCAL COURT - claim for judgment to be set aside and deposit for land purchase returned to plaintiffs - purchase of land subject to lodgement of development plan - whether special condition prevailed over standard form clause - whether inconsistency between clauses relating to rescission of contract
Legislation Cited: Local Court Act 2007
Cases Cited: AFC Holdings Pty Ltd v Shiprock Holdings Pty Ltd [2010] NSWSC 985
Australian Broadcasting Commission v Australasian Performing Right Assn Ltd [1973] HCA 36
Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337
Dodds v Kennedy (No. 2) [2011] WASCA 131
Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407
Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310
Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2; (1932) 147 LT 503
Homburg Houtimport BV v Agrosin Ltd [2003] UKHL 12; [2004] 1 AC 715
International Air Transport Assn v Ansett Australia Holdings Ltd (2008) 234 CLR 151
L Schuler AG v Wickman Machine Tool Sales Ltd [1973] UKHL 2; [1974] AC 235
McCunn v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579
Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181
Pacific Carriers v BNP Paribus [2004] HCA 35; (2004) 218 CLR 451
Rivat Pty Ltd v B & N Elomar Engineering Pty Ltd [2007] NSWSC 638
Ryan v Fergerson [1909] HCA 47; (1909) 8 CLR 731
Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517
Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Trpkovski v Russell [2001] FCA 1871
Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Limited [2007] NSWCA 276
Zhu v Treasurer of NSW [2004] HCA 56; (2004) 218 CLR 530
Category: Principal judgment
Parties: Peter Parry & Jennifer Ann Parry (Plaintiffs)
Navaroo Constructions Pty Limited (Defendant)
Representation: Counsel:
J Masters (Plaintiffs)
Y Shariff (Defendant)
Solicitors:
Baker Deane & Nutt (Plaintiffs)
Robinson & Davies Pty Ltd (Defendant)

File Number(s): 2012/322014
Decision under appeal

Date of Decision:

2012-12-02 00:00:00

Before:

Bone LCM

File Number(s):

2012/67520

Judgment

HER HONOUR: This is an appeal of the whole of the decision of his Honour Magistrate Christopher Bone…

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 Parry v Navaroo Constructions Pty Limited

Details

AGLC: Parry v Navaroo Constructions Pty Limited [2013] NSWSC 249
Case: [2013] NSWSC 249
Decision Date: 27 March 2013

CaseChat Overview and Summary

The case of Parry v Navaroo Constructions Pty Limited involved an appeal from the Local Court. The plaintiffs sought to have a judgment set aside and for a deposit paid for the purchase of land to be returned. The land in question was subject to the lodgement of a development plan. The dispute centred on whether a special condition of the contract took precedence over a standard form clause, and whether there was an inconsistency between the clauses regarding the rescission of the contract. The Local Court had previously ruled in favour of the plaintiffs, but the defendant appealed this decision.

The primary legal issues addressed by the court were the interpretation of the special condition and standard form clause in the contract and whether these clauses were inconsistent with each other. The court needed to determine whether the special condition, which required the lodgement of a development plan, could override the standard form clause, which provided for rescission of the contract if certain conditions were not met. The court also had to assess whether there was a conflict between the two clauses that needed to be resolved.

The court examined the terms of the contract and the circumstances surrounding the parties' agreement. It found that the special condition did indeed prevail over the standard form clause. The court reasoned that the special condition was a specific term that was intended to address a particular requirement for the sale of the land, while the standard form clause was a more general provision. The court held that where there was an inconsistency between the clauses, the special condition took precedence. Consequently, the court found that the special condition relating to the lodgement of a development plan was valid and enforceable, and it did not conflict with the standard form clause regarding rescission.

The court set aside the judgment of the Local Court and dismissed the plaintiffs' claim. The plaintiffs were ordered to pay the costs of the appeal. The court ruled that the special condition regarding the lodgement of a development plan was not inconsistent with the standard form clause and that the special condition took precedence. The plaintiffs were therefore not entitled to have the contract rescinded or the deposit returned.

Orders