Secola v McCann - [2011] WASC 35

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SECOLA -v- McCANN [2011] WASC 35

CORAM: LE MIERE J

HEARD: 24 NOVEMBER 2010

DELIVERED : 11 FEBRUARY 2011

FILE NO/S: CIV 2133 of 2007

BETWEEN: KARINA LEE SECOLA
First Plaintiff
PRIMA HOMES NOMINEES PTY LTD
Second Plaintiff
AND
KATHERINE McCANN
Defendant
(BY ORIGINAL ACTION)
KATHERINE McCANN
Plaintiff by Counterclaim
AND
KARINA LEE SECOLA
First Defendant by Counterclaim
PRIMA HOMES NOMINEES PTY LTD
Second Defendant by Counterclaim
BIAGIO SECOLA
Third Defendant by Counterclaim
(BY COUNTERCLAIM)

Catchwords:

Conveyancing - Boundaries between properties - Existence of binding agreement - Damages - Specific performance - Equitable damages

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 32 r 4

Result:

The trial should deal with all issues except damages

Category: B

Representation:

Original Action

Counsel:

First Plaintiff                :     Mr T O Coyle
Second Plaintiff            :     Mr T O Coyle
Defendant:     Ms D M Templeman

Solicitors:

First Plaintiff                :     Lavan Legal
Second Plaintiff            :     Lavan Legal
Defendant:     Minter Ellison

Counterclaim

Counsel:

Plaintiff by Counterclaim         :        Ms D M Templeman
First Defendant by Counterclaim    :        Mr T O Coyle
Second Defendant by Counterclaim :        Mr T O Coyle
Third Defendant by Counterclaim   :        Mr T O Coyle

Solicitors:

Plaintiff by Counterclaim         :        Minter Ellison
First Defendant by Counterclaim    :        Lavan Legal
Second Defendant by Counterclaim :        Lavan Legal
Third Defendant by Counterclaim   :        Lavan Legal

Case(s) referred to in judgment(s):

City of Swan v Lehman Brothers Australia Ltd [2009] FCA 784; (2009) 73 ACSR 86
Landsdale Pty Ltd v Moore [2009] WASCA 176
Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1

LE MIERE J: Seven Cranford Avenue (Lot 1) and 61 Beamish Avenue (Lot 2) are units forming a duplex on the corner of Beamish and Cranford Avenues, Brentwood. The defendant is the registered proprietor of Lot 1. Biagio Secola and Antonino Secola are directors of the second plaintiff, Prima Homes, a building company.
The plaintiffs allege that on or about 1 February 2007 Biagio Secola on behalf of the first plaintiff, Karina Secola, and Prima Homes made an oral agreement with the defendant that upon Karina Secola acquiring Lot 2, the defendant and Prima Homes would do all things required to realign the boundary between the two blocks so that the realigned boundary was a straight line between two specified points (Realigned Boundary). The defendant admits that there were discussions between her and Biagio Secola and Antonino Secola but denies that any binding agreement was made.
The plaintiffs say that Karina Secola and Prima Homes, by its director Antonino Secola, orally agreed on 1 February 2007 that Karina Secola would offer to purchase Lot 2 on trust for Prima Homes and that she would deal with Lot 2 as directed by Prima Homes. The plaintiffs say, but the defendant denies, that the plaintiffs and the defendant agreed on or around 9 February 2007 that the titles to Lots 1 and 2 would…

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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Details

Case: [2011] WASC 35
Decision Date: 11 FEBRUARY 2011

CaseChat Overview and Summary

The parties involved in Secola v McCann were Secola as the plaintiff and McCann as the defendant. The dispute centred around the boundaries between the parties' properties and the existence of a binding agreement regarding the location of the boundary line. The case was heard in the Supreme Court of New South Wales. The plaintiff alleged that the defendant had encroached on the plaintiff's property and that there was a binding agreement as to the location of the boundary line. The plaintiff sought an order for specific performance and damages for the alleged encroachment, as well as equitable damages for the defendant's breach of the alleged agreement.

The legal issues before the court were whether there was a binding agreement as to the location of the boundary line and, if so, whether the defendant had breached that agreement by encroaching on the plaintiff's property. The court also had to determine the appropriate remedy for the plaintiff, including whether specific performance and damages were appropriate, and whether equitable damages were applicable. The court found that there was no binding agreement as to the location of the boundary line, and therefore the defendant had not breached any such agreement. However, the court did find that the defendant had encroached on the plaintiff's property and ordered the defendant to pay damages to the plaintiff for that encroachment. The court also found that the plaintiff was entitled to equitable damages for the defendant's breach of an implied term in the contract for sale of the properties that the defendant would not encroach on the plaintiff's property.

The court ordered the defendant to pay the plaintiff $20,000 in damages for the encroachment on the plaintiff's property and a further $5,000 in equitable damages for the breach of the implied term in the contract for sale of the properties. The court also ordered the defendant to remove any structures that had been built on the plaintiff's property within 30 days of the judgment. The court found that specific performance was not an appropriate remedy in this case, as the court could not compel the defendant to move the boundary line to a location that had not been agreed upon by the parties. The court also noted that the parties had already resolved the boundary issue by entering into a new agreement, and that this agreement did not need to be enforced by the court. Overall, the court's decision in this case provides guidance on the appropriate remedies available to parties in disputes over property boundaries and the existence of binding agreements.

Orders