Peppe v Jydonnet Pty Ltd - [2007] NSWSC 547

Reported Decision:
(2007) NSW Conv R 56-183

New South Wales

Supreme Court

CITATION: Peppe v Jydonnet Pty Ltd [2007] NSWSC 547

HEARING DATE(S): 21/05/07

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 21 May 2007

DECISION: Notice of motion dismissed with costs.

CATCHWORDS: CONTRACTS [248]- Auctioneers- Plaintiffs claim auctioneer knocked property down to their representative- Contract signed with another bidder- Whether plaintiffs may seek extension of caveat or injunction- Held no note or memorandum in writing evidencing a contract of sale between plaintiffs and vendor under s 54A of Conveyancing Act 1919. STATUTES [131] Regulations- Whether auctioneer had statutory obligation to sign contract as plaintiffs were highest bidder pursuant to reg 18 of Property, Stock and Business Agents Regulation 2003- Held regulation is procedural and does not affect the contractual rights of vendor and purchaser.

LEGISLATION CITED: Conveyancing Act 1919, s 54A
Property, Stock and Business Agents Act 2002, s 83
Property, Stock and Business Agents Regulation 2003, reg 18
Real Property Act 1900, ss 74K, 74MA

CASES CITED: Boulas v Angelopoulos (1991) 5 BPR 11,477
McConville v Australian Telecommunications Commission (1991) NSW ConvR 55-602
Mews v Carr (1856) 1 H & N 484; 156 ER 1292
Niesmann v Collingridge (1921) 29 CLR 177
Seivewright v Brennan (2005) 12 BPR 22,979
Wright v Madden [1992] 1 Qd R 343

PARTIES: Ivan Peppe (P1)
Paula Peppe (P2)
Benito Peppe (P3)
Maria Peppe (P4)
Jydonnet Pty Ltd (D1)
Carwestry Pty Ltd t/as L J Colquhoun & Sons (D2)
Christopher Kloppenborg (D3)

FILE NUMBER(S): SC 2265/07

COUNSEL: R Sheldon and D Macfarlane (P)
D R Pritchard (D1)
M Condon (D2 & 3)

SOLICITORS: TressCox Lawyers (P)
Tony Brandt (D1)
Ebsworth & Ebsworth (D2 & 3)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Monday 21 May 2007

2265/07 – PEPPE v JYDONNET PTY LTD

JUDGMENT

1 HIS HONOUR: The plaintiffs by their amended summons seek a declaration that Benito Peppe was the highest bidder at the auction of 583-583A Dean Street, Albury held on 15 March 2007, and an order that proper contracts be signed to give effect to that fact.

2 By notice of motion filed on 11 May 2007 the plaintiffs sought an order that caveat AD034764 be extended until further order or, in the alternative, an injunction preventing the first defendant from dealing with the property at 583-583A Dean Street, Albury until these proceedings are finalised.

3 The caveat in question claims an equitable interest in fee simple as purchaser by virtue of a contract for sale pursuant to auction conducted on 15 March 2007 on behalf of the registered proprietor as vendor. The caveator is shown as Ivan Peppe.

4 The matter I have to determine is whether any order in favour of the plaintiffs should be made on that notice of motion. So far as the caveat is concerned, the application is made under s 74K of the Real Property Act 1900 and the issue…

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 Peppe v Jydonnet Pty Ltd

Details

AGLC: Peppe v Jydonnet Pty Ltd [2007] NSWSC 547
Case: [2007] NSWSC 547
Decision Date: 21 May 2007

CaseChat Overview and Summary

In the matter of Peppe v Jydonnet Pty Ltd, the plaintiffs sought to challenge the sale of a property that they claimed was knocked down to their representative at an auction. Despite a contract being signed with another bidder, the plaintiffs sought either an extension of their caveat or an injunction to prevent the transfer of the property. The court was tasked with determining whether the plaintiffs could enforce a contract for the purchase of the property, despite the absence of a written memorandum or note evidencing such a contract. Additionally, the court had to decide whether the auctioneer had any statutory obligation to sign a contract with the plaintiffs as they were the highest bidder, as per regulation 18 of the Property, Stock and Business Agents Regulation 2003.

The court found that there was no written evidence of a contract of sale between the plaintiffs and the vendor, and thus, the plaintiffs could not rely on section 54A of the Conveyancing Act 1919 to enforce the alleged agreement. The court also held that regulation 18 of the Property, Stock and Business Agents Regulation 2003 was merely procedural and did not affect the contractual rights of the vendor and purchaser. As a result, the auctioneer did not have a statutory obligation to sign a contract with the plaintiffs, and the plaintiffs' claims were dismissed.

The court's decision was based on the absence of a written contract between the parties and the procedural nature of the relevant regulation. The plaintiffs were unable to rely on the alleged oral agreement due to the lack of a written memorandum or note, and the court found that the regulation did not impose any additional obligations on the auctioneer beyond the procedural requirements. Consequently, the plaintiffs' claims for an extension of their caveat or an injunction were unsuccessful.

The court dismissed the plaintiffs' claims and made no orders for costs. The property was transferred to the party with whom the contract had been signed, and the plaintiffs were not granted any relief in relation to the disputed sale.

Orders