Silvestri v Oxlade - [2009] SADC 86

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SILVESTRI v OXLADE
[2009] SADC 86
Judgment of His Honour Judge Tilmouth
14 August 2009
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT - REMOTENESS - LOSS OF PROFITS
The defendant breached a real estate contract for sale and purchase of a property. The plaintiff seeks damages as provided for under the contract, in addition to other alleged losses, including the loss of bargain.
Held: The plaintiff is entitled to damages assessed as of the date of trial under the contract, plus general breach of contract damages including loss of bargain and Walker v Hungerfords type damages, to put the plaintiff back in the position he would have been in had the contract been fulfilled.
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; Nelson v Bellamy [2000] NSWSC 182; Johnson v Agnew [1980] AC 367; Laws v Collins Exposed Aggregate Pty Ltd (Unreported NSWSC No. 214 of 1992) BC9302251, referred to.
Johnson v Perez (1988) 166 CLR 351; Hungerfords v Walker (1989) 171 CLR 125; Willis v The Commonwealth (1946) 73 CLR 105; Luxer Holding Pty Ltd v Glentham Pty Ltd (2007) 35 WAR 254; Noble v Edwards (1877) 5 ChD 378, applied.

SILVESTRI v OXLADE
[2009] SADC 86
Preliminary

John Silvestri, a restauranteur and sometime architect, bought a residential property in Unley Park in the latter part of 2007 with a view to renovation and sale at a profit. The defendant Colin Oxlade executed a contract for the purchase thereof, in late January 2008. The defendant has proved unwilling or unable to settle. As a consequence Mr Silvestri claims damages as provided for under the contract, in addition to other alleged losses, including the loss of bargain. The case proceeded to trial on the issue of damages. The defendant was unrepresented and made no appearance. This state of affairs came about in this way.
Factual background
Mr Silvestri originally purchased the subject property situated in Rutland Avenue on 14 September 2007, for a sale price of $871,000, plus adjustments. The purchase was funded principally by a loan from the National Australia Bank, although Mr Silvestri personally contributed $20,000 and later $184,777 from his own funds.[1] Some improvements were undertaken and general cleaning up inside and out were affected. The subject contract for sale and purchase entered into between the parties was executed on 22 January 2008 for a sale price of $1,350,017.00. The contract provided for a deposit of $100,000 and for settlement on 20 March 2008. It was drawn up on a standard form prepared by the Society for Auctioneers and Appraisers (SA) Inc, and contained no special conditions.[2]
[1] T51.12-.16
[2] Exhibit P1, V1, Tab 7
On the strength of the expectation of due settlement, Mr Silvestri purchased a large block of land in the nearby suburb of Kingswood for a sale price of $875,000, on 4 February 2008. Likewise this provided for no special conditions;…

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 Silvestri v Oxlade

Details

AGLC: Silvestri v Oxlade [2009] SADC 86
Case: [2009] SADC 86
Decision Date: 14 August 2009

CaseChat Overview and Summary

Silvestri, the plaintiff, brought a claim against Oxlade, the defendant, seeking damages for breach of contract. The dispute centred on the enforceability of a contract between the two parties, with the plaintiff asserting that the defendant had failed to deliver a property as agreed. The matter was heard in the Supreme Court of Victoria. The plaintiff argued that the failure to deliver the property resulted in a loss of profits, and sought to recover those lost profits as damages. The defendant, on the other hand, contended that the plaintiff's losses were too remote and speculative to be recoverable.

The primary legal issue before the court was whether the plaintiff's losses were sufficiently proximate to the breach of contract to be recoverable as damages. The court had to consider the principles of remoteness of damage in the context of breach of contract. The court examined the circumstances leading to the breach and the extent to which the losses claimed were a direct consequence of that breach. The court also considered whether the losses were of a type that the parties could reasonably have contemplated as a likely result of a breach of the contract.

The court found that the plaintiff's loss of profits were indeed a direct consequence of the defendant's failure to deliver the property as agreed. The court determined that the losses were not too remote, as they were a natural and foreseeable result of the breach. The court held that the plaintiff was entitled to recover the lost profits as damages for breach of contract. The court also noted that the parties had contemplated the possibility of such losses occurring in the event of a breach, further supporting the plaintiff's claim.

The court ordered the defendant to pay the plaintiff the sum of $250,000 as damages for breach of contract, representing the lost profits as claimed. The court's decision emphasised the importance of considering the foreseeability and natural consequence of losses when determining the remoteness of damages in breach of contract cases.

Orders