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Re Di Felice, Fillizio Ex parte Di Felice, Fillizio v Bent, Everett Thomson

Re Di Felice, Fillizio Ex parte Di Felice, Fillizio v Bent, Everett Thomson

Case [1982] FCA 65 7 April 1982

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Re: FILLIZIO DI FELICE (also known as PHILIP DI FELICE)
Ex parte: THE SAME
And: EVERETT THOMSON BENT; VINCENT SAMUEL HUTTLEY and MAUREEN MAVIS HUTTLEY
X No. 53 of 1979
Contract

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND
Fitzgerald J.

CATCHWORDS

CONTRACT - Option to purchase - exercise of option - compliance of exercise of option with terms of option contract - notice of exercise of option accompanied by alternative proposal - repudiation - failure to accept repudiation.

Quadling v. Robinson (1976) 137 C.L.R. 192 followed

Green v. Summerville (1979) 50 A.L.J.R. 50 referred to.

Wodar Investment Development Ltd v. Wimpey Constructions U.K. Ltd (1980) 1 W.L.R. 277 referred to.

CONTRACT - Uncertainty of terms - construction so as to find an enforceable obligation - construction to avoid inconsistency or absurdity.

Cudgen Rutile (No. 2) Pty Ltd v. Chalk (1975) A.C. 520, dicta of Lord Wilberforce referred to.

CONTRACT - Illusory bargain - terms to be fixed by a party's solicitor - party given latitude of choice as to means of performance.

George v. Roach (1942) 67 C.L.R. 253 applied

Goedcke v. Kirwan (1973) 129 C.L.R. 629 considered.

CROWN LANDS - sub-lease of leasehold Crown lands - ministerial approval - whether failure of ministerial approval avoids sub-lease - whether registration of sub-lease signifies approval.

Land Act 1962-1978 (Qld) s.274(2)(a)

Tweed Motors (Qld) Pty Ltd v. Moran Motors Pty Ltd (1975) 39 A.L.J.R. 279 referred to. BANKRUPTCY - Bankrupt seeking to restrain transaction by controlling trustee appointed under Bankruptcy Act Part X - BANKRUPTCY ACT 1966 (Cth), s.212A.

EVIDENCE - Party's evidence patently untrue - failure to call witness who must have been able to give vitally important evidence - inferences drawn. Steinberg v. F.C.T. (1975) 134 C.L.R. 640 referred to.

CONTRACT - Alteration of sublease after execution - whether consensus ad idem - whether sublease avoided by alterations.

CONTRACT - Statute of Frauds - alterations to sublease not attested by party - performance - Property Law Act 1974-1978 (Qld) ss. 11 and 59.

CONTRACT - assent after alteration to sublease as altered - Estoppel and Ratification - whether relevant conduct and knowledge is that of bankrupt or trustee in bankruptcy.

Koenigsblatt v. Sweet (1923) 2 Ch. 314 applied

O'Young v. Walter Reid and Company Ltd (1923) 47 C.L.R. 497 applied.

Kok Hoong v. Leong Cheong Kweng Mines Ltd (1964) A.C. 993 referred to.

CROWN LANDS - Sub-lease of leasehold Crown lands - prohibition on lessee holding lease on trust - whether existence of trust avoids lease -

Land Act 1962-1978 (Qld) s.91, s.274(2)(b), s.296.

BANKRUPTCY - Application by debtor for order relating to decision of controlling trustee - "justice and equity".

Bankruptcy Act 1966 (Cth) s.212A

Ex parte James (1874) 9 Ch. App. 609 referred to. A. INTRODUCTION

HEARING

BRISBANE

#DATE 7:4:1982

ORDER

The application is dismissed.

JUDGE1

This is an application under s.212A of the Bankruptcy Act 1966 (Cwlth), by Fillizio Di Felice, also known as…

Details

AGLC: Re Di Felice, Fillizio Ex parte Di Felice, Fillizio v Bent, Everett Thomson & Ors [1982] FCA 65
Case: [1982] FCA 65
Decision Date: 07 APRIL 1982

CaseChat Overview and Summary

The case before the court involved Di Felice, Fillizio, the applicants, and Bent, Everett Thomson, the respondents. The dispute arose from an option to purchase a property, where the applicants sought to enforce the option, claiming the respondents had repudiated the contract by not accepting their notice of exercise of the option which was accompanied by an alternative proposal. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the exercise of the option to purchase complied with the terms of the option contract, particularly whether the notice of exercise of the option, which included an alternative proposal, amounted to a repudiation of the contract by the applicants. The court also needed to determine if the respondents had validly accepted the repudiation, thereby terminating the contract.

The court held that the notice of exercise of the option, which included an alternative proposal, did not amount to a repudiation of the contract by the applicants. The court reasoned that the option contract did not prohibit the applicants from proposing an alternative to the exercise of the option, and therefore, the inclusion of such a proposal did not constitute a repudiation. Furthermore, the court found that the respondents had not validly accepted the repudiation, as they had not unequivocally communicated their acceptance of the repudiation to the applicants. Consequently, the applicants' application to enforce the option to purchase was dismissed.

The orders of the court were that the application by the applicants to enforce the option to purchase was dismissed.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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Citations

Re Di Felice, Fillizio Ex parte Di Felice, Fillizio v Bent, Everett Thomson & Ors [1982] FCA 65

Cases Citing This Decision

No citing cases yet.

Cases Cited

American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd [1981] HCA 65
Citation 1

…The High Court has recently stated in American Dairy Queen (Qld) Pty Ltd v. Blue Rio Pty Ltd (1982) 56 A.L.J.R. 47, that the Land Act is not a comprehensive and exclusive code, which wholly displaces existing common law principles regulating property rights; common law principles continue to apply e…
Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1978] HCA 42
Citation 2

…In construing s.274, it is proper to have regard not only to the scope and object of the section but also to other considerations, such as the consequences of insisting upon approval as an essential pre-requisite to a valid lease (Yango Pastoral Co Pty Ltd v. First Chicago Australia Ltd (1978) 53 A.…
Quadling v Robinson [1976] HCA 31
Citation 3

…Quadling v. Robinson (1976) 137 C.L.R. 192 followed…
Godecke v Kirwan [1973] HCA 38
Citation 4

…The balance of authority strongly supports the view that whilst there is no contract if a promisor has a discretion as to whether or not he will perform what purports to be a promise (Placer Development Ltd v. The Commonwealth (1969) 121 C.L.R. 353), an agreement is not void for uncertainty and does…
Placer Development Ltd v The Commonwealth [1969] HCA 29
Citation 5

…The balance of authority strongly supports the view that whilst there is no contract if a promisor has a discretion as to whether or not he will perform what purports to be a promise (Placer Development Ltd v. The Commonwealth (1969) 121 C.L.R. 353), an agreement is not void for uncertainty and does…
Mehmet v Benson [1965] HCA 18
Citation 6

…Tweed Motors (Qld) Pty Ltd v. Moran Motors Pty Ltd (1975) 39 A.L.J.R. 279 referred to. BANKRUPTCY - Bankrupt seeking to restrain transaction by controlling trustee appointed under Bankruptcy Act Part X - BANKRUPTCY ACT 1966 (Cth), s.212A.…
Thorby v Goldberg [1964] HCA 41
Citation 7

…The balance of authority strongly supports the view that whilst there is no contract if a promisor has a discretion as to whether or not he will perform what purports to be a promise (Placer Development Ltd v. The Commonwealth (1969) 121 C.L.R. 353), an agreement is not void for uncertainty and does…
Pirie v Saunders [1961] HCA 4
Citation 8

…The latter argument, and perhaps the former also, assume that, for the doctrine in Koenigsblatt to apply, the alterations subsequently assented to must have been made by a person who purported to act as the agent for the party who had already signed, although unauthorized to do so, and that the subs…
Goodwin v Temple [1956] HCA 68
Citation 9

…The bankrupt's attack on clause 2(c) focused on the first part of the clause, particularly the part dealing with the payment of the balance purchase price. No submission was made that the provision for the mortgage to contain "the usual terms and conditions appropriate. . ." was uncertain. The conce…
Fitzgerald v Masters [1956] HCA 53
Citation 10

…The basic structure of the clause can be perceived by imagining a comma inserted after the reference to the amount of $30,000.00; the part of the first sentence before the comma concerns the payment of the balance purchase price, and the part of that sentence after the comma relates to the calculati…
Butts v O'Dwyer [1952] HCA 74
Citation 11

…Basic to the bankrupt's submission was his contention that the effect of s.274(2)(a) is that, without the approval of the Minister no valid sublease can be created. Implicit in the submission, although not developed in argument, was the proposition that the option was part of and inter-dependent wit…
Axelsen v O'Brien [1949] HCA 18
Citation 12

…The bankrupt's attack on clause 2(c) focused on the first part of the clause, particularly the part dealing with the payment of the balance purchase price. No submission was made that the provision for the mortgage to contain "the usual terms and conditions appropriate. . ." was uncertain. The conce…
O'Young v Walter Reid and Company Limited [1932] HCA 14
Citation 13

…O'Young v. Walter Reid and Company Ltd (1923) 47 C.L.R. 497 applied.…
McBride v Sandland (No 2) [1918] HCA 59
Citation 14

…Thus, it may be that in a case like the present, the bankrupt ought not be permitted to insist upon a plea that there is no signed writing merely because, for some technical reason, part performance cannot be fully made out as an answer. There is some scope for debate as to the current principles wi…
Varawa v Howard Smith & Co Ltd [1910] HCA 11
Citation 15

…I have already referred to the decisions in Koenigsblatt and O'Young as establishing that subsequent assent to a document altered after signature effectively precludes reliance upon provisions such as ss. 11 and 59 of the Property Law Act, because the effect of the ratification is that the position …
Kok Hoong v Leong Cheong Kweng Mines Limited (Malaya) [1963] UKPC 36
Citation 16

…Kok Hoong v. Leong Cheong Kweng Mines Ltd (1964) A.C. 993 referred to.…

Legislation Cited

Bankruptcy Act 1966 (Cth) 212A
4 mentions
Property Law Act 1974 (Qld)
2 mentions