Ritter v North Side Enterprises Pty Ltd

HIGH COURT OF AUSTRALIA

Gibbs, Stephen and Murphy JJ.

RITTER v. NORTH SIDE ENTERPRISES PTY. LTD.

(1975) 132 CLR 301

4 June 1975

Contract—Practice (Q.)—Practice

Contract—Sale of land—Misrepresentation—Assertion by vendor's agent that sewerage would be connected within four months—Whether representation of fact. Practice (Q.)—Summary judgment—Vendor's action for specific performance of contract for sale of land—Affidavit by purchaser that he was induced to enter contract as result of assurance by purchaser's agent that sewerage would be connected within four months—Whether a triable issue entitling purchaser to right to defend. Practice—High Court—Costs—Appeal from State Supreme Court—Grant of leave by single judge of State Supreme Court for plaintiff to enter final judgment—Appeal as of right by defendant to High Court—Whether appropriate—Costs.

Decisions

June 4.
The following judgements were delivered:-
GIBBS J. This is an appeal from a judgment of the Supreme Court of Queensland ordering specific performance of a contract for the sale of land made between the respondent as vendor and the appellants as purchasers. The judgment was given on an application made under O. 18A of the Rules of the Supreme Court of Queensland. (at p303)

2. The appeal is supported on three grounds. The first of these grounds is that the material before the learned primary judge raised a triable issue that the making of the contract had been induced by fraudulent misrepresentations made by one Warick Gray as agent of the respondent. The evidence on which the appellants relied in support of this ground was contained in an affidavit sworn by the male appellant which, so far as is relevant, was in the following terms:

"I knew that the Caboolture Shire Council had not installed sewerage at that time and I informed the said Warick Gray of this. He then assured me that the Caboolture Shire Council would have sewerage in this area in less than four months. It was only after this had been made known to me that I considered the land to be of any use to us and I agreed to the purchase on this condition. The said Warick Gray agreed to this condition and asserted most emphatically that the said land would be connected with sewerage by the Caboolture Shire Council within four months from 29th April 1974. On behalf of myself and my wife I was induced to enter into the said contract of sale by the said representations of the said Warick Gray and on condition that these representations were part of the agreement between the vendor and ourselves. This was agreed to on behalf of the plaintiff by the said Warick Gray. The plaintiffs have breached the said representations and the said collateral agreements and we claim that the said representations were made fraudulently because the plaintiff's said agent well knew or recklessly so represented not caring whether it was true or false, that the said land would not be sewered by the said Caboolture Shire Council within four months from 29th April 1974 and in fact even at this stage…