Scott v Ennis-Oakes

Case [2020] NSWCA 239


Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Scott v Ennis-Oakes [2020] NSWCA 239
Hearing dates: 7 May 2020
Decision date: 01 October 2020
Before: Bathurst CJ at [1]; Bell P at [61]; Gleeson JA at [64]
Decision:

(1)   Appeal dismissed.

(2)   Order the appellants pay the respondent’s costs of the appeal.

Catchwords:

LAND LAW – Conveyancing – Contract for sale – Rescission – Respondent wished to rescind contract – Appellants did not consent to proposed rescission and maintained contract was “still on foot” – Appellants elected to affirm contract rather than terminating and seeking loss of bargain damages – Appellants sought orders for specific performance – Respondent subsequently entered into a Scheme of Arrangement Deed and sought to rescind the contract on this basis – Appellants sought loss of bargain damages – Whether contract came to an end because of supervening circumstances – Whether appellants entitled to loss of bargain damages at the time when respondent terminated contract on basis of entering into Scheme of Arrangement.

Legislation Cited:

Conveyancing Act 1919 (NSW)

Cases Cited:

Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468

Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 2 AC 180

Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 75 ALJR 312

Dominion Coal Co Ltd v Dominion Iron and Steel Co Ltd [1909] AC 293

Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7

Heyman v Darwins [1942] AC 356

Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 93 ALJR 1164

Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australia) Pty Ltd (1954) 90 CLR 235; [1954] HCA 25

Progressive Mailing House v Tabali Pty Ltd (1985) 157 CLR 17; [1985] HCA 14

Re Gibbs and Houlder Bros & Co Limited’s Lease [1925] Ch 198

Shevill v Builders Licensing Board (1982) 149 CLR 620; [1982] HCA 47

Sibbles v Highfern Pty Ltd (1988) 164 CLR 214 at 227; [1987] HCA 66

Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245; [1988] HCA 11

The Millstream Pty Ltd v Schultz [1980] 1 NSWLR 547

Upper Hunter Timbers Pty Ltd v Forestry Commission of NSW [1999] NSWCA 125

Category:Principal judgment
Parties: Kylie Anne Scott (first appellant)
Bradley John Scott (second appellant)
Nicole Rae Ennis-Oakes (respondent)
Representation:

Counsel:
A D Crossland with M Cobb-Clark (appellants)
J C Kelly SC with M F Newtown (respondent)

Solicitors:
Gavin Parsons & Associates (appellants)
Dentons (respondent)
File Number(s): 2019/305409
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity
Citation:

[2019] NSWSC 1257

Date of Decision:
23 September 2019
Before:
Darke J
File Number(s):
2017/232666

HEADNOTE

[This headnote is not to be read as part of the judgment]

Kylie Anne Scott and Bradley John Scott (the appellants) appealed against orders made by the primary judge dismissing a claim brought by them against the respondent,…

Continue reading Scott v Ennis-Oakes

Sign in free to access the full text

Details
AGLC
Scott v Ennis-Oakes [2020] NSWCA 239
Case
[2020] NSWCA 239
Decision Date

CaseChat Overview and Summary

The appeal in *Scott v Ennis-Oakes* concerned a dispute between the appellants and the respondent arising from a contract for the sale of land. The respondent sought to rescind the contract, but the appellants did not consent, asserting the contract remained on foot and electing to affirm it rather than terminate and claim loss of bargain damages. The appellants initially sought orders for specific performance. Subsequently, the respondent entered into a Scheme of Arrangement Deed and sought to rescind the contract on this basis, leading the appellants to claim loss of bargain damages.

The Court of Appeal of New South Wales was required to determine whether the contract had ended due to supervening circumstances, and whether the appellants were entitled to loss of bargain damages at the time the respondent terminated the contract by entering into the Scheme of Arrangement.

The Court reasoned that the appellants' election to affirm the contract, rather than terminate and claim damages, meant they were bound by that election. The subsequent entry into the Scheme of Arrangement by the respondent constituted a repudiation of the contract. The Court held that the appellants were entitled to elect to affirm the contract and claim loss of bargain damages at the time of this repudiation. However, the Court found that the appellants had not established that the contract had come to an end due to supervening circumstances.

The appeal was dismissed, and the appellants were ordered to pay the respondent’s costs of the appeal.

Orders

Orders of the court

(1) Appeal dismissed.

(2) Order the appellants pay the respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.