Seivewright v Brennan - [2005] NSWSC 216

Reported Decision:
(2005) NSW ConvR 56-122

New South Wales

Supreme Court

CITATION:
Seivewright v Brennan [2005] NSWSC 216

HEARING DATE(S): 11/03/05

JUDGMENT DATE :

11 March 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Young CJ in Eq

DECISION:
Interlocutory relief refused.

CATCHWORDS:
CONTRACTS [249]- Auctioneer acknowledging then rejecting highest bid- Knocking down property to next highest bidder- Whether highest bid in law has right to have auctioneer sign contract. EQUITY [341]- Injunctions- Point of law arising on interim injunction application- Normally to be decided. PROFESSIONS & TRADES [41]- Auctioneers- Auctioneer acknowledging bid- Later treating bid as rejected- Whether permissible. STATUTES [131]- Regulations- Whether regulation to control conduct of auctions creates contract between bidders.

LEGISLATION CITED:
Property, Stock and Business Agents Act 2002, ss 79, 230
Property, Stock and Business Agents Act 2002, Regulation 18

CASES CITED:
AGC (Advances) Ltd v McWhirter (1977) 1 BPR 9454
Barry v Davies [2000] 1 WLR 1962
Barry v Heathcote Ball & Co (Commercial Auctions) Ltd [2001] 1 All ER 944
Craney v Bugg [1971] 1 NSWLR 13
Koumaros v Perpetual Trust Australia Ltd (1998) V ConvR 54-577
Niesmann v Collingridge (1921) 29 CLR 177
Tasker v Small (1837) 3 My & Cr 63; 40 ER 848

PARTIES:
Desmond George Seivewright (P)
Scott Larry Brennan (D1)
Robert Thompson (D2)
Rowan Ridge Pty Limited (D3)

FILE NUMBER(S):
SC 1869/05

COUNSEL:
B A Coles QC and M Ashhurst (P)
C Harris (D1)

SOLICITORS:
McCabe Terrill Lawyers (P)
Willis & Bowring (D1)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 11 March 2005

1869/05 – SEIVEWRIGHT v BRENNAN

JUDGMENT

1 HIS HONOUR: This is a very unusual application for an injunction to protect an alleged interest in a piece of land in the Port Macquarie area. The relevant property consists of, it would seem, six lots of land in Hastings River Drive and Hibbard Drive, Port Macquarie. The registered proprietor is a Mr McIntyre, who, it would seem, was proposing to use the land for development as an industrial site and for that purpose obtained finance from various financiers, including the first defendant, Mr Brennan, who is the third mortgagee.

2 The mortgagor defaulted and Mr Brennan took possession and put the property up for sale. The auction was held at the Country Comfort Motel at Port Macquarie at noon on 29 January 2005. The auctioneer was the second defendant, Mr Thompson. Mr Thompson's offsider, if I may use that term, was Mr Jacob Croker of Elders Real Estate, Port Macquarie.

3 Mr Seivewright, the plaintiff, attended the auction and introduced himself to Messrs Thompson and Croker. Mr Croker said that it was not necessary for the plaintiff to register as a recognised bidder, "unless you are representing a third party as agent", in which case he had to produce a letter of authorisation.

4 The plaintiff replied that he would be representing "Mortgage One" and the authorisation was being faxed. Mr Croker said:

“If you are the highest…

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.

Continue reading Seivewright v Brennan

Details

AGLC: Seivewright v Brennan [2005] NSWSC 216
Case: [2005] NSWSC 216
Decision Date: 11 March 2005

CaseChat Overview and Summary

In the case of Seivewright v Brennan, the plaintiff, Seivewright, sought to challenge the conduct of an auction held by the defendant, Brennan, an auctioneer. The dispute arose when Brennan acknowledged Seivewright's bid as the highest but subsequently knocked down the property to the next highest bidder. Seivewright argued that the auctioneer's acknowledgment of the highest bid created a binding contract, while Brennan contended that the auctioneer's actions did not amount to a binding agreement and that the highest bid did not have a legal right to have the auctioneer sign a contract. The matter was heard in the Supreme Court of Queensland.

The primary legal issues before the court were whether the auctioneer's acknowledgment of the highest bid created a binding contract and whether the highest bid had a right to have the auctioneer sign a contract. Additionally, the court needed to determine whether the regulation governing auctions created a contract between the bidders and whether an injunction should be granted based on the point of law arising from the interim injunction application.

The court held that the auctioneer's acknowledgment of the highest bid did not create a binding contract, as the bidding process is a form of invitation to treat, not an offer. The court emphasised that the auctioneer's duty is to conduct the auction in accordance with the rules and regulations, and the highest bid does not have a right to have the auctioneer sign a contract. The court also found that the regulation governing auctions did not create a contract between the bidders, as it only regulated the conduct of the auction. Regarding the injunction, the court determined that the point of law arising from the interim injunction application should normally be decided.

As a result of the court's decision, Seivewright's claim was dismissed, and the injunction application was denied. The court's ruling clarified the legal position regarding the auctioneer's acknowledgment of bids and the rights of bidders in an auction context.

Orders