Statewide Developments Pty Ltd v Higgins

Case [2011] NSWCA 35

Court of Appeal

New South Wales
Case Title: Statewide Developments Pty Ltd v Higgins
Medium Neutral Citation: [2011] NSWCA 35
Hearing Date(s): 1 February 2011
Decision Date: 07 March 2011
Jurisdiction:
Before:

Macfarlan JA at 1; Handley AJA at 2; Sackville AJA at 3
Decision:

1. Appeal dismissed.
2. The appellant pay the respondent's costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

CONTRACT - damages - purchaser under a contract for the sale of a unit defaults - vendor terminates contract - vendor claims as damages mortgage interest payments - whether evidence established that the claimed loss was caused by the purchaser's breach

CONVEYANCING - primary Judge orders return of deposit under s 55(2A) of the Conveyancing Act 1919 (NSW) by reason of the vendor's misrepresentation prior to the contract - whether any error shown in the exercise of the primary Judge's discretion
Legislation Cited:

Trade Practices Act 1974 (Cth), ss 51A, 52, 82

Conveyancing Act 1919 (NSW), s 55(2A)

Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:

Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310
Carpenter v McGrath (1996) 40 NSWLR 39
Flight v Booth (1834) 1 Bing NC 370; 131 ER 1160
Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145
Havyn Pty Ltd v Webster [2005] NSWCA 182, ATPR (Digest) 46-266
Higgins v Statewide Developments Pty Ltd [2010] NSWSC 183
Higgins v Statewide Developments Pty Ltd [2010] NSWSC 383
Hungerfords v Walker [1989] HCA 8; 171 CLR 125
Jampco Pty Ltd v Cameron (No 2) (1985) 3 NSWLR 391
March v E & HM Stramore Pty Ltd [1991] HCA 12; 171 CLR 506
Murphy v Overton Investments Pty Ltd [2004] HCA 3; 216 CLR 388
Nassif v Caminer [2009] NSWCA 45; 74 NSWLR 276
Palasty v Parlby [2007] NSWCA 345; (2008) NSW Conv R 56-205
Robinson v Harman (1848) 1 Ex 850; 154 ER 363
The Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; 174 CLR 64
Texts Cited:

P Butt, The Standard Contract for the Sale of Land in New South Wales (2nd ed, 1998)
N Seddon and M P Ellinghaus, Cheshire & Fifoot's Law of Contract (8th Aust ed, 2002)
Category: Principal judgment
Parties:

Statewide Developments Pty Limited (A.C.N. 120 080 404 842) (Appellant)
Damian Paul Higgins (Respondent)
Representation
- Counsel:

Counsel:
Mr M Leeming SC and Ms J Taylor - Appellant
Mr P Barham - Respondent
- Solicitors:

Solicitors:
Mills Oakley Lawyers - Appellant
Paladin Law - Respondent
File number(s): 289007/09
Publication Restriction:

Judgment

  1. MACFARLAN JA: I agree with Sackville AJA.

  1. HANDLEY AJA: I agree with Sackville AJA.

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Details
AGLC
Statewide Developments Pty Ltd v Higgins [2011] NSWCA 35
Case
[2011] NSWCA 35
Decision Date

CaseChat Overview and Summary

Statewide Developments Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning a contract for the sale of a unit. The dispute arose when the purchaser (the respondent) defaulted under the contract, leading the vendor (the appellant) to terminate. The appellant sought to recover damages, including mortgage interest payments, while the primary judge had also ordered the return of the deposit under section 55(2A) of the *Conveyancing Act 1919* (NSW) due to a misrepresentation by the vendor.

The Court of Appeal was required to determine two principal issues. Firstly, whether the evidence established that the mortgage interest payments claimed by the vendor as damages were caused by the purchaser's breach of contract. Secondly, the Court had to consider whether there was any error in the primary judge's exercise of discretion in ordering the return of the deposit under section 55(2A) of the *Conveyancing Act 1919* (NSW) by reason of the vendor's pre-contractual misrepresentation.

The Court of Appeal dismissed the appeal. It was held that the primary judge had not erred in finding that the vendor had failed to establish that the claimed mortgage interest payments were a consequence of the purchaser's breach. Furthermore, the Court found no error in the primary judge's exercise of discretion to order the return of the deposit, given the finding of misrepresentation. Consequently, the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant pay the respondent's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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