Sullivan v Thurley - [1987] TASSC 19

TASSC A6/1987

CITATION: Sullivan & Anor v Thurley [1987] TASSC 19; A6/1987

PARTIES:  SULLIVAN & ANOR
  v
  THURLEY

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  408/1986
DELIVERED ON:  9 March 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF:  Wright J

CATCHWORDS:

REPRESENTATION:

Counsel:
             Plaintiffs:
             Defendant:
Solicitors:
             Plaintiffs:
             Defendant:

Judgment Number: TASSC A6/1987
Number of paragraphs: 34

Serial No A6/1987
File No 408/1986

SULLIVAN & ANOR v THURLEY

REASONS FOR JUDGMENT WRIGHT J

9 March 1987

On 1 June 1985 the plaintiffs Thomas and Edna Sullivan as vendors, entered into an Agreement for Sale (“the Agreement”) with the defendant Peter Edward Thurley in respect of the rear portion of their property situated at 11 Ray Street, Launceston for a price of $10,000. The defendant’s purpose was to acquire an area of land suitable for displaying and storing used motor vehicles. At the time of signing the Agreement he was a dealer in four wheel drive vehicles although he has since sold his interest in that business to his former partner, Mr Keith Brient.

11 Ray Street consists of a rectangular block of land with a frontage on Ray Street and a rear boundary on Rooms Avenue. There is a substantial residence erected upon the Ray Street end of the block and this is occupied by the plaintiffs. The rear portion of the block appears from the plans appended to the Agreement and other documents to constitute about one third to one half of the total area.

The Agreement provides for the payment of a deposit of $1,000 to the vendors’ solicitors as stakeholders. In fact this amount was paid to the plaintiff Thomas Sullivan and is, presumably, still held by him. However nothing turns upon this.

Clause 3 of the Agreement provides as follows:

“The contract shall be completed within fourteen (14) days of the approval of the subdivision of the property and issue of a separate Title to the same.”

For reasons which will become apparent the Agreement has not been completed, subdivision of the property has not been approved and a separate Title has not issued.

Clauses 14 to 16 of the Agreement are in the following terms:

“14 This Agreement is subject to the issue of a separate Title to the property within twelve (12) months of the date hereof with regard to which the parties undertake to use every reasonable endeavour to obtain the same within that time.
15 Notwithstanding the provisions of Clause 14 hereof the Vendor will allow the Purchaser to take possession of the property from the 15th day of April 1985 until settlement at the rent of $10.00 per week until completion.
16 In the event that the sale of the property is not completed in accordance with Clause 14 hereof the Vendor will enter into a lease of the property to the Purchaser at $15.00 per week for five (5) years with an option to take a further lease at the expiration of that lease for five (5) years…

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 Sullivan v Thurley

Details

AGLC: Sullivan v Thurley [1987] TASSC 19
Case: [1987] TASSC 19
Decision Date: 9 March 1987

CaseChat Overview and Summary

The plaintiffs, Thomas and Edna Sullivan, sought to eject the defendant, Peter Edward Thurley, from the rear portion of their property at 11 Ray Street, Launceston, which he had taken possession of under an Agreement for Sale. The defendant had entered into possession on 15 April 1985, but the sale had not been completed as the Launceston Council had refused permission to subdivide the land, which was a condition of the Agreement. The plaintiffs argued that the defendant's rights under the Agreement had been determined and sought declarations, an injunction, and removal of a caveat lodged by the defendant on their title. The defendant denied the plaintiffs' claims and argued that the Agreement's terms remained binding.

The court had to decide whether the plaintiffs could enforce the Agreement's terms, particularly the lease provision in Clause 16, given the Council's refusal to approve the subdivision. The court also had to determine the nature of the defendant's tenancy and whether the plaintiffs had validly terminated it. The court concluded that Clause 16 of the Agreement was not void for uncertainty and amounted to a submission to arbitration. However, the court found that the defendant's proposed lease would amount to a subdivision of the land, which required Council approval. Since the Council had refused this approval, the lease could not be enforced. The court further found that the defendant's possession of the land did not make him a tenant at will, as the Agreement provided for a weekly tenancy. The plaintiffs had not validly terminated this tenancy with their Notice to Quit, as it did not comply with the required notice period.

The court ruled in favour of the defendant, stating that the plaintiffs had failed to make out a prima facie case for the relief they sought. The court ordered that judgment be entered for the defendant. The plaintiffs' claim for removal of the caveat on their title was also dismissed as they had not demonstrated a prima facie case for its removal.

Orders