Peter James Cronin v Keverne Henry Yuncken and Stephen Punke No. SCGRG 89/1085 Judgment No. 3919 Number of Pages 31 Contracts Equity - [1993] SASC 3919

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA ANDERSON J

CWDS
Contracts - particular parties - vendor and purchaser Principal and agent - sale and purchase of business contract contained "subject to finance clause" which was not satisfied. Purchaser paid deposit and further monies and duty of licensed landbroker sought their return. Land Agents, Broker and Valuers Act, 1973 s89. Bosbury Pty Ltd v Comgrigg Pty Ltd (1992) 57 SASR 241 and Neagle v. Power (1967) SASR 373, applied.
Contracts - general contractual principles construction and interpretation of contracts. Effect of special condition considered. Laird v Pim and Anor
(1841) 151 ER 852 and McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457, applied. Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537; Conlon v Biggs (1943) SASR 43 and Clifton v. Coffey (1924) 34 CLR 434, considered.
Equity - Notwithstanding purchaser's entitlement consequent upon non fulfilment of special condition the vendor is to have some adjustments in his favour as a consequence of purchaser carrying on business. Hodder v Watters
(1946) VLR 222, applied.

HRNG ADELAIDE, 1-9 March 1993 #DATE 30:4:1993
Counsel for plaintiff:             Mr M A Crawley
Solicitors for plaintiff:         Moody Rossi and Co
Counsel for defendant Yuncken:     Mr G A Stevens
Solicitors for defendant Yuncken: Hume Taylor and Co
Counsel for defendant Punke:        Mr M Hoile
Solicitors for defendant Punke:     Fisher Jeffries

ORDER
On the claim: judgment for the plaintiff against the first defendant in the sum of $19,957.09 and judgment for the second defendant against the plaintiff. On the counterclaim: judgment for the plaintiff against the first defendant.
On the first defendant's/second defendant's claim: judgment for the first defendant in the sum of $1,000.

JUDGE1 ANDERSON J In this action the plaintiff claims, from the first defendant, a declaration that the agreement between them is void pursuant to Section 89(1) of the Land and Business Agents Act, 1973 together with consequential orders and, in the alternative, an order that the contract between them has been terminated and that monies be repaid to him. From the second defendant the plaintiff seeks an accounting and an order for the repayment of monies found to be due. In consolidated proceedings the first defendant claims from the second defendant damages for alleged breach of an oral agreement, breach of duty and negligence. That defendant, in his counterclaim in the principal action, seeks declarations and damages for breach of contract from the plaintiff. 2. The proceedings arise from a contract for the sale by the first defendant to the plaintiff of his business on Jetty Road, Glenelg, known as "The Bay Pharmacy" ("the Pharmacy") dated 29 July, 1986. The second defendant is a landbroker. The chronology will appear subsequently but it is necessary to note at the outset that this contract, which was never completed, has resulted in over six years of effort, emotion and legal expense to come to trial. That such a situation was allowed to develop was the subject of quite pointed comment…

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

AGLC: Peter James Cronin v Keverne Henry Yuncken and Stephen Punke No. SCGRG 89/1085 Judgment No. 3919 Number of Pages 31 Contracts Equity [1993] SASC 3919
Case: [1993] SASC 3919
Decision Date: 30 April 1993

CaseChat Overview and Summary

This case involved a dispute between Peter James Cronin (the plaintiff) and Keverne Henry Yuncken (the first defendant) over the sale of a business known as "The Bay Pharmacy." The sale was facilitated by Stephen Punke (the second defendant), a licensed landbroker. The primary issue was whether the contract for the sale of the business was void due to the plaintiff's failure to obtain finance as stipulated in the "subject to finance" clause of the contract. The plaintiff sought a declaration that the contract was void and an order for the return of monies paid under the contract. The first defendant counterclaimed for damages, alleging breach of oral agreement, negligence, and breach of duty by the second defendant.

The court found that the "subject to finance" clause was a condition precedent to the obligation to complete the sale. Since the plaintiff did not obtain the necessary finance by the stipulated date, the condition precedent was not fulfilled, entitling the plaintiff to a cancellation of the contract and a refund of the monies paid. However, the court held that the plaintiff had not waived his rights under the "subject to finance" clause by entering into possession of the business on 1 September 1986, as both parties still expected the transaction to complete. Consequently, the plaintiff was entitled to a refund of $26,000, less certain adjustments totaling $6,042.91, which the first defendant was entitled to recover due to the plaintiff's occupation of the business.

Regarding the second defendant's liability, the court found that he had not breached his duty to either party. The second defendant had acted reasonably in the circumstances and had not acted in breach of any duty owed to the plaintiff or the first defendant. Therefore, the plaintiff could not recover any sum from the second defendant.

The court also dismissed the first defendant's counterclaim against the plaintiff, finding that the contract had been validly terminated and that the first defendant had failed to establish any breach of contract by the plaintiff. Lastly, the court rejected the first defendant's claim against the second defendant, finding no breach of duty or negligence on the part of the second defendant.

The final orders were as follows: judgment for the plaintiff against the first defendant in the sum of $19,957.09, judgment for the second defendant against the plaintiff, judgment for the plaintiff against the first defendant on the counterclaim, and judgment for the first defendant in the sum of $1,000 against the second defendant. The court would hear counsel as to the final form of the orders and costs.

Orders