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Sumampow v Mercator Property Consultants Pty Ltd

Sumampow v Mercator Property Consultants Pty Ltd

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Case Copied 5 April 2005 82 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: SUMAMPOW -v- MERCATOR PROPERTY CONSULTANTS PTY LTD [2005] WASCA 64

CORAM: MALCOLM CJ
MURRAY J
TEMPLEMAN J

HEARD: 3 NOVEMBER 2004

DELIVERED : 5 APRIL 2005

FILE NO/S: FUL 112 of 2000

BETWEEN: ROBBY SUMAMPOW
Appellant
AND
MERCATOR PROPERTY CONSULTANTS PTY LTD
Respondent

ON APPEAL FROM:
For File No               :  FUL 112 of 2000
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HEENAN J
Citation  :MERCATOR PROPERTY CONSULTANTS PTY LTD -v- SUMAMPOW [2000] WASC 157
File No  :CIV 2122 of 1998

Catchwords:

Contract - Nature of conditions precedent - Whether time extended - Estoppel - Implied term - No new matter of principle

Legislation:

Casino Control Ordinance 1988 (Cth), s 58

Christmas Island Act 1958 (Cth)

Corporations Law (Cth), s 459G

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J C Curthoys
Respondent: Mr M J McPhee

Solicitors:

Appellant: Mallal & Co
Respondent: Michell Sillar McPhee

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

Con‑Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Foran v Wight (1989) 168 CLR 385
Giumelli v Giumelli (1999) 196 CLR 101
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd & Ors (1986) 162 CLR 24
Moorgate Mercantile Co Ltd v Twitchings [1976] QB 225
Newmont Pty Ltd v Laverton Nickel NL (1982) 44 ALR 598
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
The Commonwealth v Verwayen (1990) 170 CLR 394
Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

Case(s) also cited:

Beswick v Beswick [1968] AC 58
Ex parte Dawes; In re Moon (1886) 17 QBD 286
Gange v Sullivan (1966) 116 CLR 418
Greer v Kettle [1938] AC 156
Hichens Harrison Woolston & Co v Jackson & Sons [1943] AC 266
Hughes v The Queen (2000) 202 CLR 535
Koutsojiannis v Brown (1980) NZCLC 98081
London Founders Association Ltd and Palmer v Clarke (1888) 20 QBD 576
Maynard v Goode (1926) 37 CLR 529
Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723
Nullagine Investments Pty Ltd v The Western Australian Club Inc (1993) 177 CLR 635
Paterson v McNaghten (1905) 2 CLR 615
Re Onward Building Society [1891] 2 QB 463
Sandra Investments Pty Ltd v Booth (1983) 153 CLR 153
Sargent v ASL Developments Ltd (1974) 131 CLR 634
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

MALCOLM CJ: This is an appeal against a judgment of Heenan J dated 16 June 2000 by which the learned Judge ordered that the appellant pay the respondent $5,508,065 plus interest thereon at the rate of 10 per cent per annum until paid; the parties be at liberty to apply; a counterclaim by the respondent be dismissed and the appellant pay the respondent's costs of the…

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: [2005] WASCA 64
Decision Date: 5 APRIL 2005

CaseChat Overview and Summary

In the case of Sumampow v Mercator Property Consultants Pty Ltd, the Full Court of the Federal Court of Australia heard an appeal regarding a dispute over a property contract. The appellant, Sumampow, alleged that the respondent, Mercator Property Consultants, failed to meet certain conditions precedent outlined in a contract for the sale of property. The primary judge had dismissed Sumampow's claims, finding that the time for fulfilling the conditions precedent had not been extended, and that estoppel did not apply. Sumampow sought to challenge these findings, arguing that the trial judge had erred in her interpretation of the contract terms and the applicability of estoppel.

The legal issues before the court were whether the conditions precedent in the contract had been extended by the parties and if estoppel could be applied to prevent Mercator from enforcing strict compliance with the conditions. The court had to interpret the contract terms, determine if there was an implied term extending the conditions, and assess if estoppel principles could be invoked to prevent Mercator from enforcing strict compliance. The court also needed to consider whether the findings of the primary judge introduced any new matters of principle.

The Full Court found that the primary judge's decision was correct and that there were no errors in her interpretation of the contract or in her application of estoppel principles. The court held that the conditions precedent had not been extended by the parties, and that estoppel did not apply in this instance. The Full Court affirmed the primary judge's conclusion that there were no new matters of principle introduced. The appeal was dismissed, and the orders of the primary judge were upheld.

Orders