Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd - [2014] WASCA 28

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PRIMEWEST (MANDURAH) PTY LTD -v- RYOM PTY LTD [2014] WASCA 28

CORAM: MARTIN CJ
PULLIN JA
MURPHY JA

HEARD: 13 AUGUST 2013

DELIVERED : 5 FEBRUARY 2014

FILE NO/S: CACV 153 of 2012

BETWEEN: PRIMEWEST (MANDURAH) PTY LTD
Appellant
AND
RYOM PTY LTD
KEDO (AUST) PTY LTD
Respondents

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :EDELMAN J
Citation  :PRIMEWEST (MANDURAH) PTY LTD -v- RYOM PTY LTD as Trustee for GOLDEN ASSET PTY LTD [2012] WASC 443
File No  :CIV 3126 of 2011

Catchwords:

Contract law - Property sale agreement - Proper construction - Construction in accordance with commercial context

Property law - Leases - Unregistered lease exceeding five years - Effect of transfer of land - Application of s 68 of the Transfer of Land Act 1893 (WA)

Appeal - New argument on appeal - New argument cannot be raised when facts are not beyond dispute

Legislation:

Property Law Act 1969 (WA), s 77, s 78
Transfer of Land Act 1893 (WA), s 68, s 82

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr C L Zelestis QC & Mr G J Douglas
Respondents : Ms P E Cahill SC

Solicitors:

Appellant: Hotchkin Hanly
Respondents : Frichot & Frichot

Case(s) referred to in judgment(s):

Chirnside v The Registrar of Titles [1921] VLR 406
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407
Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2007] WASC 88
Lockrey v Historic Houses Trust of New South Wales [2012] NSWCA 249
Mammoth Investments Pty Ltd v GIO General Ltd [2007] WASCA 34
McLennan v McCallum [2010] WASCA 45
O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310
Opera House Investment Pty Ltd v Devon Buildings Pty Ltd [1936] HCA 14; (1936) 55 CLR 110
Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2012] WASC 443
Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323
University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598
MARTIN CJ:
Summary

The appellant, Primewest (Mandurah) Pty Ltd (the Seller) entered into a contract (the Sale Contract) for the sale of a commercial retail property to the respondents, Ryom Pty Ltd and Kedo (Aust) Pty Ltd (the Purchasers). At the time of sale, separate portions of the premises constructed on the property had been leased to six tenants, all retailers. Two of the leases were for terms exceeding five years. One of those leases, conveniently described as 'the Rick Hart Lease' had been registered against the title to the land, but a transfer of the lease to an assignee…

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

Case: [2014] WASCA 28
Decision Date: 5 FEBRUARY 2014

CaseChat Overview and Summary

In the case of Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd, the dispute centred around the interpretation of a property sale agreement and the effect of an unregistered lease exceeding five years on the land's transfer. The parties involved were Primewest (Mandurah) Pty Ltd, the seller, and Ryom Pty Ltd, the buyer. The matter was brought before the Supreme Court of Western Australia, where the key issues were the proper construction of the property sale agreement and the application of section 68 of the Transfer of Land Act 1893 (WA).

The court was tasked with determining the meaning of the property sale agreement in its commercial context. The primary legal issue was whether the unregistered lease exceeded five years, and if so, whether it survived the transfer of the land in accordance with section 68 of the Transfer of Land Act. The court was also required to consider whether new arguments could be raised on appeal if the facts of the case were not beyond dispute. The court examined the construction of the contract and the effect of the unregistered lease on the sale agreement.

In its decision, the court held that the property sale agreement should be interpreted in its commercial context, taking into account the intentions of the parties involved. The court found that the unregistered lease did exceed five years and considered whether it survived the transfer of the land. The court concluded that the new argument raised on appeal could not be considered as the facts of the case were not beyond dispute. As a result, the court dismissed the appeal and upheld the original decision. The court's reasoning and outcome demonstrate the importance of considering the commercial context when interpreting property sale agreements and the effect of unregistered leases on land transfers.

Orders