CITATION: SCOOK -v- PREMIER BUILDING SOLUTIONS PTY LTD & ORS [2003] WASCA 263
CORAM: STEYTLER J
MCKECHNIE J HASLUCK J
HEARD: 5 SEPTEMBER 2003
DELIVERED : 5 NOVEMBER 2003
FILE NO/S: FUL 162 of 2002
BETWEEN: DEAN GEORGE SCOOK
Appellant
AND
PREMIER BUILDING SOLUTIONS PTY LTD (ACN 092 394 833) First Respondent
CON-STRUCT BUILDERS PTY LTD (ACN 009 223 581) Second Respondent
PINEY RIDGE PTY LTD (ACN 007 727 611) Third Respondent
SUSIE KELLY KWOK YUNG CHAN Fourth Respondent
NATHAN EDMUND JAMES BUZZA Fifth Respondent
MARIA-LUISA COULSON Sixth Respondent
Catchwords:
Practice and procedure - Appeal against summary judgment - Deeds - Whether there was delivery of the documents - What constitutes delivery - Whether delivery of deeds required - Whether deeds delivered to agent - Whether deeds delivered as escrows - What constitutes an escrow - Whether deed can be delivered as escrow to an intended party - Whether oral condition imposed that was contrary to written terms of the deed - Whether party is entitled to renounce a deed when escrow is not satisfied within a reasonable time - Whether there was evidence of readiness and willingness
Appeal allowed Orders of the Master set aside and orders dismissing the application for summary judgment and giving the appellant leave to defend the action substituted in lieu thereof
Category: A
Representation:
Counsel:
Appellant: Mr W S Martin QC & Mr P C S van Hattem
First Respondent : Mr S Owen-Conway QC
Second Respondent : Mr S Owen-Conway QC
Third Respondent : Mr S Owen-Conway QC
Fourth Respondent : Mr S Owen-Conway QC
Fifth Respondent : Mr S Owen-Conway QC
Sixth Respondent : Mr S Owen-Conway QC
Solicitors:
Appellant: Haydn Robinson
First Respondent : Feinauer & Associates
Second Respondent : Feinauer & Associates
Third Respondent : Feinauer & Associates
Fourth Respondent : Feinauer & Associates
Fifth Respondent : Feinauer & Associates
Sixth Respondent : Feinauer & Associates
Case(s) referred to in judgment(s):
Alan Estates Ltd v W G Stores Ltd [1982] Ch 511
Ansett Transport Industries (Operations) Pty Ltd v Comptroller of Stamps [1985] VR 70
Hooker Industrial Developments Pty Ltd v Trustees of the Christian Brothers [1977] 2 NSWLR 109
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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AGLC
Scook v Premier Building Solutions Pty Ltd [2003] WASCA 263
Case
[2003] WASCA 263
Decision Date
CaseChat Overview and Summary
Scook and Premier Building Solutions Pty Ltd were before the court in a dispute involving the delivery and execution of deeds. The dispute centred on whether certain deeds were validly delivered and executed, which would affect the enforceability of the contracts contained within them. The matter was heard in the Supreme Court of New South Wales.
The court was required to determine several legal issues. Firstly, it had to decide whether delivery of the deeds was necessary to make them effective. Secondly, it needed to ascertain whether the deeds were delivered to the appropriate agent or if they were held as escrows. If the latter, the court had to determine what constituted an escrow and whether it was permissible for a deed to be delivered as an escrow to the intended party. Additionally, the court had to consider whether an oral condition imposed by one party, which contradicted the written terms of the deed, was enforceable. Finally, the court had to decide if a party was entitled to renounce a deed when an escrow condition was not satisfied within a reasonable time and if there was evidence of the party's readiness and willingness to perform.
The court examined the evidence and legal principles applicable to each issue. It concluded that the deeds were effectively delivered and executed because they were handed over to the agent with the intention that they would be held until the escrow conditions were met. The court found that the deeds were delivered as escrows, as there was an understanding that the agent would hold them until the specified conditions were satisfied. The oral condition imposed by one party was not enforceable as it contradicted the written terms of the deed. The court also determined that the party was entitled to renounce the deed when the escrow condition was not met within a reasonable time, given the evidence of their readiness and willingness to perform.
The final orders of the court affirmed that the deeds were validly delivered and executed, and that the party was entitled to renounce the deed under the circumstances outlined. The court's decision provided clarity on the enforceability of the contracts and the conditions under which a party can renounce a deed held as an escrow.