Scook v Premier Building Solutions Pty Ltd

Case [2003] WASCA 263


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

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

Legislation:

Property Law Act 1969, s 9

Result:

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

Australian Hardwoods Pty Ltd v Commissioner for Railways [1961] 1 WLR 425

Bahr v Nicolay (No 2) (1988) 164 CLR 604

Beesly v Hallwood Estates Ltd [1961] Ch 105

Bowker v Burdekin (1843) 11 M & W 128; 152 ER 744

Doe d Garnons v Knight (1826) 5 B & C 671

D'Silva v Lister House Development Ltd [1971] Ch 17

Eljon Pty Ltd v Chief Commissioner of State Revenue [1999] NSWSC 266

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80

Fisher v Westpac Banking Corporation (1993) 43 FCR 385

Fitzgerald v Masters (1956) 95 CLR 420

Foundling Hospital v Crane [1911] 2 KB 367

Hooker Industrial Developments Pty Ltd v Trustees of the Christian Brothers [1977] 2 NSWLR 109

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Details
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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MCKECHNIE J

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Ratio Decidendi

Legal Principle Established

Established by: MCKECHNIE J

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