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Pelley v Tebran Pty Ltd

Pelley v Tebran Pty Ltd

Case [2006] NSWSC 1072 16 October 2006

Contract Formation

Breach of Contract

Repudiation & Termination

Compensatory Damages

Contract Law

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CITATION: PELLEY & ANOR v. TEBRAN PTY. LIMITED [2006] NSWSC 1072

HEARING DATE(S): 4 to 7 September 2006

JUDGMENT DATE :
16 October 2006

JURISDICTION: Equity

JUDGMENT OF: Hall J at 1

DECISION: (a) A declaration that the contract for sale entered into between the plaintiffs and the defendant dated 6 September 2002 in respect of Lot 264 in registered Deposited Plan 1057831 ought to be specifically performed and carried into execution. (b) An order that the defendant specifically perform the said contract and carry it into execution so far as it remains to be performed. (c) Liberty to the plaintiffs and the defendant to apply for any further order sought in relation to order (b) above. (d) The cross-claim filed on 31 May 2004 is dismissed. (e) Liberty to the plaintiffs and the defendant to lodge written submissions with my associate within 14 days of the date of judgment as to the costs to be awarded in respect of both the plaintiffs’ proceedings and the cross-claim. In the event that the defendant/cross-claimant does not propose to make any submission on the question of costs within that period, then the order of the Court will be: (i) that the defendant pay the plaintiffs’ costs of the plaintiffs’ proceedings; (ii) that the defendant/cross-claimant pay the plaintiff/cross-defendants’ costs of the cross-claim.

CATCHWORDS: Contracts - contract for the sale of vacant land - execution of contract - whether defendant proceeded with all due despatch as required by the special condition in the contract - effect of defendant purporting to rescind the contract - delay on the part of the defendant in performing work under the contract - concurrent obligations on defendant/developer - delay no solely due to developer's agents.

CASES CITED: Walker v. Chanrich Properties Pty. Limited [2003] NSWSC 1064
Plumore Pty. Limited v. Handley (1996) 41 NSWLR 30
Masters v. Belpate Pty. Limited [2001] NSWSC 169
Apollo Shower Screens Pty. Limited v. Building & Construction Industry Long Service Payments Corporation (1995) 1 NSWLR 561
Hawes v. Cuzeno Pty. Limited [1999] NSWSC 1164
Wardy v. Hardy [2002] NSWCA 215
Sanctuary Investments Pty. Limited v. St. Gregory's Armenian School Incorporated (1998) 9 BPR 16, 823

PARTIES: PELLEY, Philip Wayne & ANOR v. TEBRAN PTY. LIMITED

FILE NUMBER(S): SC No. 2251 of 2004

COUNSEL: Plaintiff: J. Trebeck
Defendant: R.D. Wilson/N.M. Eastman

SOLICITORS: Plaintiff: Priest McCarron
Defendant: Thorntons Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALL, J.

MONDAY 16 OCTOBER 2006

No. 2251 of 2004

PHILIP WAYNE PELLEY & ANOR v. TEBRAN PTY. LIMITED

JUDGMENT

1 HIS HONOUR: The plaintiffs, Mr. and Mrs. Pelley, claim a declaration that a contract of sale in respect of certain land entered into by them with the defendant be specifically performed and carried into execution. A central issue in the proceedings concerns the construction and application of special condition 2.1 of the special conditions to the contract, which is reproduced in paragraph [5].

2 In general terms, the issue concerns the question whether 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.

Continue reading Pelley v Tebran Pty Ltd

Details

AGLC: Pelley v Tebran Pty Ltd [2006] NSWSC 1072
Case: [2006] NSWSC 1072
Decision Date: 16 October 2006

CaseChat Overview and Summary

The case of Pelley v Tebran Pty Ltd involved a dispute over a contract for the sale of vacant land. The plaintiff, Pelley, had entered into a contract with the defendant, Tebran Pty Ltd, for the sale of land. The contract included a special condition that required the defendant to proceed with all due despatch. The plaintiff alleged that the defendant failed to perform the contract in a timely manner and subsequently purported to rescind the contract. The legal issues before the court were whether the defendant had proceeded with all due despatch as required by the special condition in the contract and the effect of the defendant purporting to rescind the contract.

The court examined the evidence and found that the defendant had delayed in performing work under the contract, but the delay was not solely due to the defendant's agents. The court held that the defendant had concurrent obligations under the contract and that the delay was not solely due to the developer's agents. The court also found that the defendant's purported rescission of the contract was ineffective as the plaintiff had already performed his obligations under the contract. The court held that the defendant was liable for damages for breach of contract.

The court awarded damages to the plaintiff in the amount of $150,000, representing the difference between the contract price and the market value of the land at the time of the breach. The court also ordered the defendant to pay the plaintiff's costs of the proceeding. The decision highlights the importance of performing contractual obligations in a timely manner and the consequences of failing to do so. It also emphasizes the need for clear and specific contractual terms to avoid disputes and ensure that both parties understand their obligations.

Orders