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[2010] WASC 411

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BOSVELD -v- CARDUP INDUSTRIAL LAND HOLDINGS PTY LTD [2010] WASC 411

Reported Decision:	(2011) 41 WAR 504
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2010] WASC 411
Case No:	CIV:1902/2008	Heard:	26 OCTOBER 2010
Coram:	KENNETH MARTIN J	Delivered:	13/01/11
No of pages:	29	Judgment Part:	1 of 1
Result:	Leave to bring applications (O 16) granted Applications granted Action dismissed
Category:	A
PDF Version

Parties:	DIANE SHIRLEY BOSVELD ELIZABETH OETJE BOSVELD CARDUP INDUSTRIAL LAND HOLDINGS PTY LTD as trustee for the CARDUP INDUSTRIAL LAND UNIT TRUST NO 2 VINCENT JOSEPH SICILIANO SAMANTHA RACHEL O'NEIL, BRIAN JOHN O'NEIL, INTREPID PAY PTY LTD (ASN 059 648 127) as trustee for the O'NEIL FAMILY TRUST and COOLJADE PTY LTD (ACN 086 437 345) as trustee for the SAIBHIR FAMILY TRUST
Catchwords:	Summary judgment by defendants under Rules of the Supreme Court 1971 (WA), O 16 Joint vendor plaintiffs sue purchaser for breach damages Failure to settle Deed of settlement Release by majority of co­vendor plaintiffs Viability of damages action pursued by remaining minority vendor plaintiffs
Legislation:	Rules of the Supreme Court 1971 (WA), O 14, O 16
Case References:	Australian Workers Union v Bowen [1946] HCA 24; (1946) 72 CLR 575 Bell v Rowe (1901) 26 VLR 511 Carringville Pty Ltd v Gatto Group Pty Ltd [2003] NSWSC 123 Coleman v Bone (1996) 9 BPR 16,235 Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 Howard v Australian Jet Charter Pty Ltd (1991) 6 ANZ Ins Cas 61-054 Lion White Lead Ltd v Rogers [1918] HCA 71; (1918) 25 CLR 533 Moschi v Lep Air Services Ltd [1973] AC 331 Murray-Oates v Jjadd Pty Ltd [1999] SASC 537 Net Parts International Pty Ltd v Kenoss Pty Ltd [2008] NSWCA 324 Page v McKensey [2008] NSWSC 147 Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 Smith v McCusker QC [2005] WASCA 226 Steeds v Steeds (1889) 22 QBD 537 Wallace v Kelsall (1840) 7 M & W 264, (1840) 151 ER 765

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : BOSVELD -v- CARDUP INDUSTRIAL LAND HOLDINGS PTY LTD [2010] WASC 411 CORAM : KENNETH MARTIN J HEARD : 26 OCTOBER 2010 DELIVERED : 13 JANUARY 2011 FILE NO/S : CIV 1902 of 2008 MATTER : APPLICATIONS FOR SUMMARY JUDGMENT BY THE FIRST AND SECOND DEFENDANTS PURSUANT TO ORDER 16, RULES OF THE SUPREME COURT 1971 (WA) BETWEEN : DIANE SHIRLEY BOSVELD

ELIZABETH OETJE BOSVELD
Plaintiffs

AND

CARDUP INDUSTRIAL LAND HOLDINGS PTY LTD as trustee for the CARDUP INDUSTRIAL LAND UNIT TRUST NO 2
First Defendant

VINCENT JOSEPH SICILIANO
Second Defendant

SAMANTHA RACHEL O'NEIL, BRIAN JOHN O'NEIL, INTREPID PAY PTY LTD (ASN 059 648 127) as trustee for the O'NEIL FAMILY TRUST and COOLJADE PTY LTD (ACN 086 437 345) as trustee for the SAIBHIR FAMILY TRUST
Third Defendants

(Page 2)

Catchwords:

Summary judgment by defendants under Rules of the Supreme Court 1971 (WA), O 16 - Joint vendor plaintiffs sue purchaser for breach damages - Failure to settle - Deed of settlement - Release by majority of co­vendor plaintiffs - Viability of damages action pursued by remaining minority vendor plaintiffs

Legislation:

Rules of the Supreme Court 1971 (WA), O 14, O 16

Result:

Leave to bring applications (O 16) granted

Applications granted
Action dismissed

Category: A

Representation:

Counsel:

Plaintiffs : Mr W G Spyker
First Defendant : Mr J A Thomson
Second Defendant : Mr M Ritter SC & Ms C Macleod
Third Defendants : Mr P W Catalano

Solicitors:

Plaintiffs : Cornerstone Legal
First Defendant : Lewis Blyth & Hooper
Second Defendant : Cullen Babington Hughes
Third Defendants : Henry Sklarz

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

Australian Workers Union v Bowen [1946] HCA 24; (1946) 72 CLR 575

(Page 3)

Bell v Rowe (1901) 26 VLR 511
Carringville Pty Ltd v Gatto Group Pty Ltd [2003] NSWSC 123
Coleman v Bone (1996) 9 BPR 16,235
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Howard v Australian Jet Charter Pty Ltd (1991) 6 ANZ Ins Cas 61-054
Lion White Lead Ltd v Rogers [1918] HCA 71; (1918) 25 CLR 533
Moschi v Lep Air Services Ltd [1973] AC 331
Murray-Oates v Jjadd Pty Ltd [1999] SASC 537
Net Parts International Pty Ltd v Kenoss Pty Ltd [2008] NSWCA 324
Page v McKensey [2008] NSWSC 147
Photo Production Ltd v Securicor Transport Ltd [1980] AC 827
Smith v McCusker QC [2005] WASCA 226
Steeds v Steeds (1889) 22 QBD 537
Wallace v Kelsall (1840) 7 M & W 264, (1840) 151 ER 765


(Page 4)

KENNETH MARTIN J:

Introduction

1 The first and second defendants seek leave to apply for summary judgment under Rules of the Supreme Court 1971 (WA) (RSC), O 16, dismissing claims for damages brought against them by the plaintiffs (the Bosvelds).

2 When proceedings were commenced in this matter in July 2008, the third defendants (the O'Neil parties) were then joint plaintiffs with the Bosvelds in proceedings pursed against the first defendant (Cardup Holdings) and the second defendant (Mr Siciliano).

3 The litigation raised what was, essentially, a vendor/purchaser failure to settle a dispute over facts surrounding a sale of land at Cardup (lot 7). It was alleged that the Bosvelds and O'Neil parties as vendor tenants in common in (five) equal shares agreed to sell lot 7 to Cardup Holdings on 1 April 2008 for $12 million, but that Cardup Holdings repudiated its obligation to complete as purchaser by failing to settle upon the acquisition of lot 7, due 2 July 2008.

4 The five plaintiffs also pursued Mr Siciliano, seeking damages from him in the alternative, on the basis that he purported to act as agent for Cardup Holdings in agreeing to the sale of land agreement of 1 April 2008. If Mr Siciliano exceeded his authority in making that commitment, or if no agency relationship existed, then it is put that Mr Siciliano is personally liable for damages for breach of warranty of authority, or for misrepresentation as to his (lack of) authority.

5 Upon the commencement of these proceedings in 2008, the Bosvelds and the O'Neil parties were commonly represented by one firm of solicitors, Cornerstone Legal. A statement of claim, as originally framed, was filed on behalf of the Bosvelds and the O'Neil parties, as co-plaintiffs. It sought specific performance by way of relief against Cardup Holdings, alternatively damages. However the statement of claim was amended under orders of Justice Newnes, made in October 2008. Amendments at that time abandoned the vendor's former claim to specific performance. They confined relief to claims for damages and interest (see par 30 of the amended statement of claim filed under the orders of Newnes J of 15 October 2008) against both Cardup Holdings and Mr Siciliano.

(Page 5)

6 The central question now arises out of events occurring subsequently, and manifesting in a deed of settlement and compromise (the Deed) entered in February 2010 between the O'Neil parties, Cardup Holdings and Mr Siciliano. Significantly, however, the Bosvelds were not a party to the Deed.

7 As a result of the Deed, the question is whether it remains viable in law for the Bosvelds as remaining plaintiffs, but holding only two of the undivided five shares in lot 7, to continue to pursue the damages claims as against Cardup Holdings and Mr Siciliano.

8 In the wake of the 2010 settlement Deed, the O'Neil parties, holding three of the five undivided shares in lot 7, are no longer plaintiffs. By my orders of 20 May 2010, Cornerstone Legal ceased to act for the O'Neil parties. New solicitors were appointed. From that time the O'Neil parties became third defendants in the litigation, rather than co-plaintiffs with the Bosvelds, as had been the case until then.

9 It will be necessary to refer to the precise terms of the Deed entered as between the O'Neil parties, Cardup Holdings and Mr Siciliano. I address that task shortly when setting out the relevant evidence adduced on the application.

The applications

10 Cardup Holdings', as first defendant, application by chamber summons for summary judgment as a defendant pursuant to O 16 r 1, is dated 3 June 2010 (filed 8 June 2010). It seeks orders in these terms:

1. The time for filing and service of this application be extended until the date of filing of this application at court, or to such further or other date as the court sees fit.

2. The claims of Diane Shirley Bosveld and Elizabeth Oetje Bosveld in these proceedings be dismissed.

3. Diane Shirley Bosveld and Elizabeth Oetje Bosveld do pay the first defendant's costs of and incidental to this application.

11 The second defendant, Mr Siciliano, filed an almost identical application for summary judgment against the Bosvelds on 6 October 2010.

12 In both applications leave to apply for summary judgment under O 16 r 1(1) out of time (ie beyond 21 days after appearance), is required.

(Page 6)

13 Procedural difficulties arising out of potential implications carried by the Deed came to my attention in May 2010, in the context of a dispute over the issue of disclosure of that Deed to the Bosvelds' solicitors. Problematic issues concerning the independent legal representation of the O'Neil parties had also arisen, by reason of an obvious conflict of interest which had emerged as between the O'Neil parties and the Bosvelds by that time, rendering it inappropriate for all former co-plaintiffs to continue to be commonly represented by the same solicitors.

Evidence on the application

14 On the O 16 applications for summary judgment, Cardup Holdings relied upon two affidavits it read. The first was by Mr Hossean Pourzand, sworn 4 June 2010, filed 8 June 2010. Second, the affidavit of Cardup Holdings' solicitor Mr Blythe, was read. Essentially, that second affidavit merely served a function of putting the 2002 General Conditions for the Sale of Land before the court.

15 Mr Pourzand's affidavit (par 5) attached a copy of the record of certificate of title for lot 7 (vol 176 folio 506), being 1076 Southwest Highway, Cardup. The first schedule to the certificate of title identifies the registered proprietors. The proprietor parties are seen listed here as:

Samantha Rachel Spillmann and Brian John O'Neil as joint tenants in 1/5 share, Diane Shirley Bosveld in 1/5 share, Elizabeth Oetje Bosveld in 1/5 share, Intrepid Bay Pty Ltd in 1/5 share and Cooljade Pty Ltd in 1/5 share all of 3954 Albany Highway Kelmscott as tenants in common.

16 The record of certificate of title also shows these parties as having become registered as proprietors under a transfer J479375, from 21 October 2005. (There appears to be no controversy between the parties that the as named Samantha Rachel Spillmann is the person referred to in these proceedings as Samantha Rachel O'Neil.)

17 Annexure B to Mr Pourzand's affidavit (par 6) is a copy of the sale offer and acceptance of 1 April 2008, identifying a purchase price of $12 million plus GST and a settlement date designated of 'on or before 2/07/2008'. The second page of the offer and acceptance looks to carry the signature of Mr Siciliano (witnessed alongside a date, 31/3/08, and the endorsement 'for and on behalf of Cardup Industrial Land Holdings Pty Ltd'). The two corporate co-vendors (that is Intrepid Bay Pty Ltd and Cooljade Pty Ltd) through their representatives appear to have executed the acceptance component of the acceptance form with the Bosvelds, adjacent to the date 01/04/08.

(Page 7)

18 Mr Pourzand's affidavit concludes:

7. In circumstances where there are six registered proprietors of the land, but only two registered proprietors seek to enforce the sale contract, I verily believe that the action by the two registered proprietors is not properly constituted, cannot succeed and is vexatious.

(The reference to six (not five) registered proprietors is explicable on the basis that Samantha O'Neil and Brian O'Neil together, are identified on the record of certificate of title as together being joint tenants in respect of one of the five shares in the land - that is otherwise held between the five co-owners as tenants in common. The two corporate vendors with Samantha and Brian O'Neil, constitute the O'Neil parties holding three of the five undivided shares in lot 7 as tenants in common.)

19 Mr Siciliano has also sworn his affidavit of 6 October 2010, in support of a discrete application for summary dismissal of the proceedings. Cardup Holdings relies on Mr Siciliano's affidavit, relevant as evidence on its application, and vice versa.

20 Appended to Mr Siciliano's affidavit, as attachment VJS3, is a copy of the Deed entered between the O'Neil parties, Cardup Holdings and Mr Siciliano, some provisions of which I will mention shortly.

21 At par 8 of his affidavit, Mr Siciliano contends:

8. In circumstances where:

(a) the land is owned jointly in five equal shares as tenants in common between six owners (the former six plaintiffs in this action; the O'Neil parties and the Bosvelds);

(b) the O'Neil parties' ownership amounts to 60 per cent overall and the Bosvelds' combined share amounts to 40 per cent;

(c) only two of the owners, the Bosvelds, now seek to enforce the sale contract/obtain damages based on the sale contract;

(d) the O'Neil parties have stated that they will not do so, will not proceed with this action and have been removed as plaintiffs; and

(e) by deed dated 2 February 2010 the O'Neil parties contracted with myself and the first defendant not to continue with their action ('Deed'),

(Page 8)

I am advised by my solicitor and verily believe that there was a proper basis for my solicitor to argue that the action by the Bosvelds is not properly constituted, cannot succeed and is vexatious, and bring this application to dismiss their claim.

22 At pars 10 - 13 of his affidavit Mr Siciliano explains circumstances in which the extensions of time needed by the defendants in order to bring the defendants' applications for summary judgment out of time (ie beyond 21 days) under RSC, O 16, are sought.

23 Essentially, relied upon are events in February 2010 associated with the O'Neil parties entering the Deed and then the inability of the one firm of solicitors to continue to act for all the former plaintiffs, which only transpired during 2010. The viability of this action by the residual plaintiffs (the Bosvelds), they holding only two of the five shares in lot 7, only really emerged into focus as a result of observations I made at a directions hearing in May 2010 concerning some potential implications of the Deed.

24 Issues arising out of the 2010 Deed clearly have a potential to undermine the viability of the Bosvelds' action. Delays in listing the matter for a special appointment hearing before me in late October 2010 were as a result of the need to reschedule an earlier listed special appointment, due to dual family bereavements and the consequential unavailability of some solicitors and counsel involved in these proceedings.

25 Overall, it seems to me that leave to bring the O 16 applications out of time should be granted to the applicant defendants. It would be a sensible and efficacious deployment of the courts resources in the CMC List (where flexibility of procedure is the hallmark) to assess now the full implications of this late emerging issue. If the points of law now sought to be raised against the Bosvelds by the defendants are made good, the end consequence must be a complete termination of the damages action, as currently pursued.

26 I should also observe in passing that this application is not concerned with any issues between the Bosvelds and the O'Neil parties - in terms of potential ramifications as between them (if any), by reason of the O'Neil parties' entry into the Deed of 2 February 2010.

27 That instrument is found at attachment VJS 3 - to Mr Siciliano's affidavit.

(Page 9)

The Deed of settlement and compromise of 2 February 2010

28 First, I should observe once again that the Bosvelds are not parties to the Deed. Accordingly, its settlement terms do not bind them. The controversial issue however is what legal implications flow for the Bosvelds, as a consequence of the Deed, bearing in mind its terms obviously do bind the O'Neil parties regarding Cardup Holdings and Mr Siciliano.

29 Recitals in the Deed provide:

E. On 24 July 2008 the O'Neil parties and the Bosvelds commenced Supreme Court legal proceedings against Cardup Industrial to enforce the contract or obtain damages.

F. On 15 October 2008 an order was obtained joining Siciliano as a defendant to the proceedings.

G. Without any admission as to liability, the parties have agreed to settle the action as between themselves on the terms and conditions outlined in this deed.

In a definitions component (cl 1(a)) of the Deed, 'action' is defined as these proceedings (namely CIV 1902 of 2008).

30 I will now set out cl 3, cl 4, cl 5, cl 8 and cl 11 of the Deed, which are found in these terms:

3. SETTLEMENT

(a) The O'Neil Parties agree:

(i) to not proceed with any action with regards to the Action against Cardup Industrial or Siciliano;

(ii) to relinquish their claim to damages in the Action from Cardup Industrial and Siciliano;

(iii) to take any and all steps required to discontinue their participation in the Action against Cardup Industrial and Siciliano; and

(iv) not to assign their rights in the Action as against Cardup Industrial and Siciliano to the Bosvelds or any other third party;

(iv) Any other claim or cause of action which Cardup Industrial may have against the O'Neil Parties under or arising out of the circumstances giving

(Page 10)

rise to the Action or matters referred to in the Deed.

(b) The parties agree that there be no Court Orders as to costs as between the parties and that each party shall bear their own costs in regard to the O'Neil Parties' Action and its related proceedings in effecting this Deed and in relation to any actions required by the O'Neil Parties to discontinue their action against Cardup Industrial and Siciliano, including any discontinuance proceedings.

(c) Cardup Industrial and Siciliano warrant and forebear not to join any or all of the O'Neil Parties as Third Parties to the Action and not to file any counterclaim against the O'Neil Parties.

4. RELEASE

(a) The O'Neil Parties release and discharge Cardup Industrial and Siciliano from any claim by the O'Neil Parties in respect to:

(i) The Action;

(ii) Any claim for fees or costs in relation to the Action; and

(iii) Any legal liability arising directly or indirectly out of or in connection with the Action;


(b) Siciliano releases and discharges the O'Neil Parties from any claim by Siciliano in respect to:

(i) The Action;

(ii) Any claim for fees or costs in relation to the Action;

(iii) Any legal liability arising directly or indirectly out of or in connection with the Action; and

(iv) Any other claim or cause of action which Siciliano may have against the O'Neil Parties under or arising out of the circumstances giving rise to the Action or matters referred to in the Deed.


(c) Cardup Industrial releases and discharges the O'Neil Parties from any claim by Cardup Industrial in respect to:

(i) The Action;

(Page 11)

(ii) Any claim for fees or costs in relation to the Action;

(iii) Any legal liability arising directly or indirectly out of or in connection with the Action; and

(iv) Any other claim or cause of action which Cardup Industrial may have against the O'Neil Parties under or arising out of the circumstances giving rise to the Action or matters referred to in the Deed.

5. INDEMNITY

(a) Upon Discontinuance being effected by the O'Neil Parties, the O'Neil Parties indemnify Cardup Industrial and Siciliano against any claim by the O'Neil Parties:

(i) in relation to any proceedings against them arising out of or in connection with the Action;

(ii) for costs arising out of the Action or related proceedings;

(iii) for costs arising out of the discontinuance proceedings; and

(iv) against all action, proceedings, accounts, claims, demands, costs and expenses in respect of or arising out of the Action.


(b) Upon Discontinuance being effected by the O'Neil Parties, Cardup Industrial indemnifies the O'Neil Parties against any claim by Cardup Industrial:

(i) in relation to any proceedings against them arising out of or in connection with the Action;

(ii) for costs arising out of the Action or related proceedings;

(iii) for costs arising out of the discontinuance proceedings; and

(iv) against all action, proceedings, accounts, claims, demands, costs and expenses in respect of or arising out of the Action.


(c) Upon Discontinuance being effected by the O'Neil Parties, Siciliano indemnifies the O'Neil Parties against any claim by Siciliano:

(Page 12)

(i) in relation to any proceedings against them arising out of or in connection with the Action;

(ii) for costs arising out of the Action or related proceedings;

(iii) for costs arising out of the discontinuance proceedings; and

(iv) against all action, proceedings, accounts, claims, demands, costs and expenses in respect of or arising out of the Action.

…

8. ABSOLUTE BAR


This Deed may be pleaded as an absolute bar to any claims, including without limiting the generality of the foregoing, any debt, claim or liability arising whatsoever out of or in connection with the Claim or the Action, by or in the name of any party that are released by Clause 4 above.

…

11. DISPOSAL OF PARTICIPATION IN PROCEEDINGS


(a) Cardup Industrial and Siciliano agree to resolve their participation as against the O'Neil Parties in the Action, and the O'Neil Parties agree to resolve their participation as against Cardup Industrial and Siciliano in the Action and proceedings, by the O'Neil Parties taking whatsoever action they can take to discontinue, and not resurrect at any time, their part in the Action against Cardup Industrial and Siciliano with no Order as to Costs; and

(b) Upon execution of this Deed, the parties agree to instruct their Solicitors to carry out any action including executing any consent orders required, to carry into effect the agreement in this Deed.

31 First, I refer to cl 3(a)(iii). The O'Neil parties at the time of the Deed were then the Bosvelds' co-plaintiffs in these proceedings. They now have the status in the action of joint third defendants. That situation arises as a result of my orders of 20 May 2010, in circumstances where the O'Neil parties were otherwise then seeking to discontinue and to be removed from the action as co-plaintiffs: see cl 3(b) of the Deed above. Accordingly, the O'Neil parties' continued participation in the action, as from May 2010 is mandated by the court's orders, on a basis that they are
(Page 13)

necessary parties to a determination over the consequences of the Deed towards the action generally.

32 Next, cl 3(a)(iv) is seen as an express covenant by the O'Neil parties against the assignment of their rights in the action. That covenant has considerable significance on this application, in light of arguments by the Bosvelds that there was an earlier assignment to them of the O'Neil parties' rights in this action. I will evaluate that argument in due course.

33 Third, the Bosvelds advance a further argument resisting the applications, contending that the Deed ought be assessed merely as a covenant not to sue, rather than as an absolute release by the O'Neil parties against Cardup Holdings and Mr Siciliano. However, the Deed's express provisions, cl 4 and cl 8, as can be seen above, render that submission untenable. No more need be said of it.

34 When the defendants' applications for summary dismissal came on for hearing, counsel for the O'Neil parties did not seek to adduce any evidence, or make an affirmative submission to the court. Essentially the position of the O'Neil parties as conveyed through Mr Catalano, was to abide by the decision of the court. That stance, on the face of it, is inconsistent with the content of written submissions filed on behalf of the O'Neil parties through their solicitor on 25 October 2010, and carrying the signature of counsel. The thrust of those written submissions tends to suggest that the O'Neil parties' position is that the matter is not appropriate for summary determination, on a basis of the defendants' O 16 applications. But during his oral submission Mr Catalano confirmed that the stance of the O'Neil parties as third defendants in the litigation was essentially to 'sit on the fence'. The written submissions filed were to be regarded as a provision of counsel's opinion which the O'Neil parties had obtained and then provided to assist the court.

35 For O 14 and O 16 applications, the legal position is clear. Ordinarily a party is entitled to have their day in court. Consequently, Australian courts will be cautious before denying a party that opportunity. It is only in clear cases, where it appears that a plaintiff's case is seen to be overwhelming, or a defendant's defence wholly untenable, that a court will contemplate exercising powers of summary dismissal under RSC, O 14 in the case of a plaintiff, or RSC, O 16, in the case of a defendant. Where there looms a factual dispute raising the need for an evidential determination of material importance in the outcome, such circumstances generally dictate that the matter must proceed to determination to a trial.

(Page 14)

36 There was no dispute between these parties as to the state of the law regarding the threshold needed to be surmounted by an applicant in order to succeed on an application for summary dismissal of the claims: see generally Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99 and Smith v McCuskerQC [2005] WASCA 226 [88].

The Bosvelds' evidence resisting the O 16 applications

37 On behalf of the Bosvelds as the residual plaintiffs in the action, reliance was placed upon an affidavit of the plaintiffs' solicitor, Mr Sundaram Subramanian.

38 Mr Subramanian's affidavit is directed towards providing a basis for one of the Bosvelds' resistance arguments, to the effect that contrary to what the O'Neil parties are seen to covenant by cl 3(a)(iv) of the Deed, that they had earlier assigned their rights to this litigation to the Bosvelds.

39 As this argument unfolded, the contention appeared to be that in 2009 by reference to annexure SS2 to Mr Subramanian's affidavit, an assignment agreement (not deed) had been reached by conduct following earlier communications. By an email sent on 4 May 2009 at 2.31 pm, from Mr Brian O'Neil at 2.31 pm, he informed Mr Subramanian:

As discussed we would be assigning our rights if David O'Neil, Brian O'Neil and Clark and O'Neil Property Group PL would not be sued. This is not in the current deed please fix. Brian O'Neil.

40 Earlier, on 4 May 2009, Mr Subramanian had forwarded in an email to Mr O'Neil, an unexecuted 'deed for assignment of rights', adding his (properly made) observation, 'on which you may wish to seek legal advice on'.

41 On behalf of the Bosvelds, it was then said that subsequently, on 20 May 2009, when Mr Subramanian forwarded a further proposed deed of assignment to Tracy O'Neil (see annexure SS3) - that this latest iteration had been amended by Mr Subramanian to cater for Mr Brian O'Neil's earlier expressed concern about the O'Neil parties not being sued. Reference was made to cl 7.1 in the iteration, which now provided:

The assignees agree that they will not commence any action against any of the assignors or the Related Parties in relation to the contract of sale entered into between the assignor, assignees and the buyer on 1 April 2008 or in relation to any other matters arising out of this deed and this deed may be pleaded and tendered as an absolute bar and defence to any proceedings brought in breach of the terms of this deed.

(Page 15)

42 However the proposed amended 'deed' for assignment of rights sent under cover of Mr Subramanian's emailed communication to Tracy O'Neil of 20 May 2009 never came to be executed by the O'Neil parties. It is accepted that Mr Subramanian's proposed deed was never signed, sealed or delivered. An argument is put however, that albeit there was no deed, that nevertheless there still was a perfected agreement found in this conduct - from 20 May 2009, by reason of the earlier email exchange with Brian O'Neil of 4 May 2009, arising upon the fulfilment of the only expressed concern by the O'Neil parties - which it is contended was subsequently met by the content of the new cl 7.1.

43 In my assessment this resistance argument is also untenable, still bearing in mind the high threshold applicable to the exercise of summary jurisdiction. It is plain that negotiations embodied within the email communications found in Mr Subramanian's affidavit envisaged that the parties' arrangements, if perfected, were eventually to be solemnly consummated by deed. That did not occur. Furthermore, a clear and properly recognised conflict of interest situation had arisen as regards Mr Subramanian's position as solicitor. That conflict inhibited him from continuing to act for all original plaintiffs in the litigation. Mr Subramanian properly recognised his difficulty as regards the O'Neil parties, see his memorandum of 7 April 2009 (annexure SS5) after an attendance upon the Bosvelds and Mr Brian O'Neil. From annexure SS5 it seems that there was then discussion about potential assignment of the O'Neil's rights in this litigation to the Bosvelds at that meeting and that embodiment of any such assignment would be through the medium of a deed. It is plain from cl (c) and cl (d) of that file note the O'Neil's, as was only proper in the conflict situation which had arisen, were to be obtaining their own independent legal advice about such a deed before committing. Mr Subramanian's dispatch of a proposed deed of assignment, sent to Tracy O'Neil under cover of his letter of 20 May 2009, reflected the understanding about need for independent legal advice for the O'Neil parties. He wrote:

Please find attached the Deed of Assignment of Rights on which you will be seeking legal advice.

On obtaining legal advice please let us know whether you and the related entities would be proceeding to execute this Deed.

The O'Neil parties did not advise that they would be proceeding.

(Page 16)

44 These underlying factual circumstances then (which are not a mater of controversy), from the face of passing email correspondence, are incompatible with any rationalisation that an agreement as to assignment was (somehow) reached - for assignment of the O'Neil parties' rights in this action (CIV 1902 of 2008), in the absence of a fully and finally executed deed - and in respect of which the O'Neil parties had received independent legal advice.

45 My analysis above is consistent with Mr Subramanian's subsequent letter of 1 June 2010 (annexure SS6) to the O'Neil parties' new solicitor (Mr Henry Sklarz) as to possible implications of the O'Neil parties' entering a (different) deed of settlement with Cardup Holdings and Mr Siciliano. Nothing in that letter of 1 June 2010 suggests (as might be expected on this argument) that the O'Neil parties had (somehow) earlier committed by agreement with the Bosvelds to an assignment in May 2009.

46 The plaintiffs' argument therefore as to an earlier 2009 assignment agreement being reached with the O'Neil parties of rights in this action to the Bosvelds - and prior to the entry of the Deed of 2 February 2010, is untenable.

The defendant/applicants' submissions

47 Cardup Holdings and Mr Siciliano contend that the legal effect of the Deed of 2 February 2010, has been from then, to render the further pursuit of the Bosvelds' action for damages for breach, in respect of the 2008 sale of land contractual arrangements over lot 7, unsustainable. It is argued that once the O'Neil parties became precluded from pursuing any claim against Cardup Holdings (and Mr Siciliano) by reason of the Deed, the joint vendors' action for damages became terminally afflicted.

48 Cardup Holdings' submissions proceed on the basis of an assumption that there was a valid sale contract perfected in 2008 between it and the owners of lot 7 (that issue is however, outside a concession made for these applications, otherwise heavily in dispute, from the face of the pleadings filed in the litigation).

49 The summary dismissal argument of Cardup Holdings proceeds (par 14, written submissions of 11 October 2010):

Properly construed (Cardup Holdings) promise to pay the owners of the land (ie the Bosvelds and the O'Neil parties) the purchase price for the land was a joint promise, not a joint and several promise.

(Page 17)

50 In other words, it is argued that Cardup Holdings made only one promise to pay $12 million as the purchase price for lot 7 to all owners of that land, in return for all the owners transferring to Cardup Holdings the whole of their interests in lot 7. The characterisation of 'joint' promise to pay, is said to be supported by the freehold character of the subject matter of the sale, namely lot 7, the land to be acquired being held in the names of five parties, each holding one-fifth shares, as tenants in common.

51 It is contended next, that Cardup Holdings, as the purchaser of lot 7:

16. … never had any obligation to pay $12 million, or any aliquot share of that amount, to individual owners of the land. Payment to one or several owners only, would not have been a good discharge of Cardup Holdings' (contractual obligations).

17. Any breach of (Cardup Holdings') primary obligation to pay $12 million to the owners of the land at settlement would create a secondary liability to pay damages for such breach to the owners of the land. Having regard to the joint nature of the primary liability, the secondary liability to pay damages would also create a liability owned by (Cardup Holdings) to the owners of the land jointly, not severally.

52 Reference to a 'secondary liability' to pay damages, requires amplification. I have already observed that these proceedings as commenced, then pursued the equitable remedy of specific performance, on behalf of the vendors against the purchaser. If, however, three of the five co-vendor tenants in common (manifestly from the Deed) are no longer willing to proceed to settle on the sale (in fact have bound themselves by the Deed not to pursue the purchaser), the vendors as a whole are hardly to be assessed as ready, willing and able to perform, as regards a disposition of lot 7 to Cardup Holdings as purchaser. On that basis, specific performance as a remedy, is clearly unavailable. However, by reason of the amendments to the statement of claim effected in October 2008, the then plaintiffs as a whole, elected at that time not to pursue specific performance. Rather, from then they pursued only damages for breach. Reference to a 'secondary liability' as a characterisation of the breach damages claim advanced by the vendors of lot 7, invokes the terminology of Lord Wilberforce in Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, that speech in turn referring to and approving observations by Lord Diplock in Moschi v Lep Air Services Ltd [1973] AC 331, 350.

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53 'Secondary liability', is an appropriate characterisation of a claim for breach damages against Cardup Holdings by the vendors of lot 7, in the wake of a decision by them not to pursue specific performance.

54 The characterisation of the 2008 contract of sale in respect of lot 7 as a 'joint' purchase and sale arrangement, must in my view be accepted as correct, notwithstanding that the vendor comprised five tenants in common, all holding equal undivided one-fifth shares in the sale property, lot 7. The sale and acquisition however, was only for the one undivided property, ie lot 7. There was also only one undivided purchase price payable, namely $12 million.

55 In my assessment, it is untenable to try to characterise the sale and purchase transaction for lot 7 as one by which Cardup Holdings as purchaser acquires under the contract of sale, five discrete components of property, by reference to the several interests of the five different tenants in common. The sale and purchase arrangement here must, I think, be assessed as just one joint sale and purchase. The observation made by Professor Glanville Williams in Joint Obligations His Work (1949) page 35 that, '[I]n law of the contract a promise by two is presumed to be joint unless there are words making it joint and several' is, I think, apposite to the present case - where there was only one joint promise made to sell by the five tenants in common of lot 7, acting together towards Cardup Holdings as purchaser. That characterisation of 'joint' promise then logically flows through to the purchaser's secondary liability (if established), to pay damages for breach of its primary obligation to settle.

56 What then is the effect from 2 February 2010 of the Deed upon the Bosvelds - they constituting only two-fifths of the vendors who acted jointly to sell, until the Deed, in pursuing a claim for breach damages against the purchaser?

57 Cardup Holdings' submissions contend:

19. It is well settled that an accord and satisfaction, or release, effected with only one of two joint creditors operates to discharge the joint debt. See Wallace v Kelsall (1840) 7 M&W 264; 151 ER 765, Burke v Proudfoot (1890) 6 WN (NSW) 135; Page v McKensey [2008] NSWSC 147 [28].

20. This has been applied in the particular context of discharging the debt due upon the sale of land by co-owners, where only one co-owner has entered a settlement with the purchasers. Coleman v Bone (1996) 9 BPR 16,235, at p 16,238.

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21. The reason why, at law, settlement with one joint creditor extinguishes the debt due to all joint creditors 'is that the two creditors are treated as having a joint interest in the debt, with its incident of survivorship, and the satisfaction to one of the parties of a joint demand due to himself and others puts an end to the joint demand, and he cannot afterwards, by joining the other parties with him as plaintiffs, recover the debt: nor can a right of action be supposed to exist which, if it existed, might survive to the very person who had already received full value: Steeds v Steeds (1889) 22 QBD 537, 541.

It is necessary to consider some of the cases relied on by these submissions in a little greater depth.

58 In Wallace v Kelsall (1840) 7 M & W 264, (1840) 151 ER 765, Parke B observed:

[T]his case is decided simply on the ground, that one of the parties has received satisfaction for a joint demand due to him and others, which puts an end to such joint demand, and that he cannot afterwards, by joining the other parties with him as plaintiffs, recover that debt.

59 In Page v McKensey [2008] NSWSC 147 [28] Windeyer J, obiter, applied Wallace v Kelsall (also referring also to Bacon's Abridgment, vol 5, Release D) towards release of a judgment debt, by one of several joint judgment creditors: see also [29]. The context may be seen from [1] of his Honour's reasons:

In the particular circumstances of this case, are three out of five original joint creditors entitled to enforce a money judgment and costs orders against the judgment debtor and a person subject to a costs order not yet quantified?

60 In Coleman v Bone (1996) 9 BPR 16,235, regarding a joint creditor who did not give evidence, albeit was a co-vendor with the plaintiff, and who was not a party to proceedings, McLelland CJ, in Eq observed:

The absence of Mr Coleman as a party to any such accord and satisfaction does not affect the position, because an accord and satisfaction effected with only one of two joint creditors operates to discharge the joint debt (Wallace v Kelsall (1840) 7 M &W 264, 151 ER 765). (16,240)

61 However, in another early decision Steeds v Steeds (1889) 22 QBD 537 Wills J, reading the judgment of the court, at (540), observed that a court of equity may ameliorate a common law position rendered by the application of Wallace v Kelsall, in appropriate circumstances. Wills J said, at (541) as to the position in equity:

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[T]he general rule with regard to money lent by two persons to a third was that they will prima facie be regarded as tenants in common, and not as joint tenants, both of the debt and of any security held for it: (citation of authority omitted).

62 Cardup Holdings relied upon the High Court's decision, Australian Workers Union v Bowen [1946] HCA 24; (1946) 72 CLR 575. There it was held that a judgment debt could not be enforced through bankruptcy proceedings by one (or some) only, of a number of joint judgment creditors, as the debt was jointly owned by all judgment creditors. As a consequence, bankruptcy proceedings could not be maintained, absent the participation of all judgment creditors.

63 Cardup Holdings concluded its submissions on the basis of Wallace v Kelsall:

[T]he settlement of the joint liability between [Cardup Holdings and the O'Neil parties] has extinguished any liability owed by [Cardup Holdings to the Bosvelds]. Hence, the present way in which the action is framed cannot be maintained and judgment should be given for [Cardup Holdings against the Bosvelds].

64 Mr Siciliano through written and then oral submissions made by senior counsel, supported the dismissal argument of Cardup Holdings.

65 Mr Siciliano's submissions mention a decision of Hill J in the Federal Court, Howard v Australian Jet Charter Pty Ltd (1991) 6 ANZ Ins Cas 61-054. There, Hill J had observed (obiter), in reference to obligations under an insurance contract, that he could:

[F]ind no reason in principle why, if in truth, the promise released is a joint promise such that there is but one obligation, a release of such promise would not stand in the same position as a release by a joint creditor of the debtor. The reason for the rule would seem to be that where there is a joint debt it must be demanded jointly, and if one of the creditors puts an end to his right then there can be no longer a joint demand: cf Steeds v Steeds (supra) at 541, a case which, however, held that the debt in question was in equity a joint debt so that the principle was inapplicable.

66 Senior Counsel for Mr Siciliano emphasised that the decision in Coleman v Bone (16,240) was presently significant, since Wallace v Kelsall had there been applied in a scenario of discharge of obligations not of debt, but to circumstances surrounding a purchase of property sold by joint sellers, where there had been an 'accord and satisfaction' reached with only one of the joint sellers.

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67 The potential damages liability of Mr Siciliano (as second defendant in the litigation) is of course conceptually distinct to the breach damages liability (if established) of Cardup Holdings. Mr Siciliano is pursued for damages in the alternative to Cardup Holdings on the basis of his having allegedly acted without authority as agent, or acting in breach of a warranty of authority as to being in a position as agent, to bind Cardup Holdings. But Mr Siciliano is a party with Cardup Holdings to the Deed of 2 February 2010, with the O'Neil parties. That being so, it seems to me the fundamental legal questions at issue concerning continued viability in a damages action against him, only pursued by the Bosvelds, in the wake of the Deed, raises, in essence, the same essential legal question for determination, as arises for Cardup Holdings.

68 Mr Siciliano's written submissions conclude:

26. In these present circumstances the Bosveld parties are unable to enforce against the second defendant any liability for damages arising out of the contract of sale for the land. This is because of the joint nature of the claimed entitlement to damages by the initial six plaintiffs from the second defendant, the O'Neil parties have released and discharged the second defendant from any such liability and the O'Neil parties having agreed and now been precluded from, pursuant to the deed, the assignment of their rights to claim damages or proceed with the action to the Bosveld parties.

The submissions of the Bosvelds as residual plaintiffs seeking damages

69 Properly emphasising the caution a court must exercise before summarily dismissing any action, the Bosvelds (par 13 of their written submissions of 22 November 2010), submitted that four main issues raised questions that properly needed to be determined only at a trial, and therefore stood to thwart these defendants' applications for summary judgment by Cardup Holdings and Mr Siciliano.

70 These four issues were, with my analysis following in parenthesis:

(a) The O'Neil parties assigned their rights in this action to the plaintiffs in or about April/May 2009.

[For reasons already expressed, my view is that this argument is untenable, even evaluated with the caution rendered by a court in determining applications for summary judgment.]

(b) 'The contract defines "Seller" as "each person so specified in the contract"'. As such, the plaintiffs are separate parties to the contract from each other and the third defendants.

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[The submission carries elements of ambiguity. It is of course correct that the Bosvelds and the O'Neil parties together constituted the seller or vendor, in respect of the contract of sale entered into with, Cardup Holdings as purchaser of lot 7. To the extent however that this submission may contend that there arose, several obligations owed by the purchaser to each of the co-owners as tenants in common, I must reject that characterisation. For reasons discussed earlier, I conclude that Cardup Holdings' obligation to purchase lot 7 was a single obligation entered with lot 7's co-owners jointly, rather than severally. So also is any secondary liability in damages subsequently reposed in Cardup Holdings to pay damages to the same vendors, if it is assessed as having breached its purchaser obligations, by failing to settle.]

(c) The land was owned by the parties as tenants in common, allowing each to exercise their proprietary rights severally.


[The contention appears to go hand in hand with contention (b) above, and must be rejected. In October 2008, when all the co-owners elected to abandon claims to specific performance on the sale contract and instead to only from then seek breach damages for loss of bargain (as a result of alleged repudiation or renunciation of the purchase obligation by Cardup Holdings), that claim seeking damages is to be assessed as the one joint chose in action against Cardup Holdings, held by the vendors jointly, not severally. It was a 'secondary liability' in damages (if made out) of Cardup Holdings, applying Lord Wilberforce's terminology from Photo Production v Securicor Transport. It retained the character of a joint chose for damages against Cardup Holdings and never evolved to become an exercise of proprietary rights severally, by co-vendors.]

(d) 'In any event joint parties to a contract may exercise their right to terminate and sue for damages independently.'

[This broad contention as regards the right of joint parties to act independently, is fundamentally against the submissions of Cardup Holdings and Mr Siciliano - who invoke the Wallace v Kelsall joint debt line live of authority to contend that just as settlement effected with one of two joint creditors discharges a joint debt at common law, that also is the effect of a settlement to

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discharge a jointly-held chose in action being pursued for damages.]

71 The Bosvelds' issue (d) essentially raises a question of legal principle. It is in my assessment the only potential resistance argument which the Bosvelds can raise against a summary dismissal of their proceedings.

72 But the point is one of law, raised in circumstances where there is no other issue between the parties about the underlying facts. I see no reason then, why the point may not properly be resolved in the context of a potential dismissal of the Bosvelds proceedings on the summary judgment applications brought by Cardup Holdings and Mr Siciliano under RSC,O 16, if the issue (d) proposition is not sustained as arguable.

Resolution of issue (d)

73 The Bosvelds' written submissions of 22 October 2010 raise two case authorities (I will mention) to justify a continuance by them, as plaintiffs alone, of this damages action.

74 In the course of oral submissions, Mr Spyker, counsel for the Bosvelds, suggested that it could be that a court of equity may only allow the Bosvelds to pursue a claim for damages against Cardup Holdings, on a basis of their pursuing only a two-fifths (40%) interest in damages. The concession, I think, points up some in-principle difficulties for the Bosvelds as joint parties now constituting, overall, only a two-fifths minority interest, yet purporting to act on behalf of all joint interest holders in a continued pursuit of the claims for damages against Cardup Holdings and Mr Siciliano.

75 Counsel did not resile from strongly supporting a policy outcome whereby all joint parties who had once participated as co-plaintiffs at the commencement of the litigation, are held to their continued participation (albeit on a basis they changed status to defendants and were entitled to receive an indemnity in respect of any costs exposure, by the residual plaintiffs) until all the joint parties agreed a different course. To my mind that outcome raises policy concerns regarding the unsustainable ongoing perpetuation of litigation, notwithstanding that a majority of joint interest holders resolve that they no longer wish to continue the litigation.

76 Mr Spyker also invoked the written outline of submissions of 25 October 2010, submitted by the O'Neil parties, in circumstances I earlier described. From there, one submission was that in order to

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properly construe the Deed, it is necessary to receive evidence going to possibly relevant circumstances surrounding the making of the Deed. I reject the contention as to what facts might possibly be out there, but are unidentified as of now. It is for the parties to raise before the court, materials relevant to the proper determination of summary judgment applications. I have now assessed all affidavit materials before the court. If there were some potentially relevant further surrounding fact or circumstance bearing upon a proper construction of the Deed, I would have expected the party concerned, either to plead the fact, or at least to identify it with some clarity, in this application. No such further potential fact or circumstance or relevance has been hinted at, let alone identified. I therefore reject the submission that such a consideration inhibits the determination of these applications.

77 A further submission within the O'Neil parties written submissions is a contention, already noticed and rejected, to the effect that the Deed only goes to constitute a covenant not to sue by the O'Neil parties - rather than being a complete release. That submission is manifestly inconsistent with express provisions in the Deed, I have already identified.

78 In circumstances where the O'Neil parties initially joined the Bosvelds as co-plaintiffs at the commencement of these proceedings in July 2008, a characterisation of the Deed as merely a covenant not to sue by the O'Neil parties seems strikingly inappropriate - as the O'Neil parties had already sued. That being so, the likelihood in February 2010 that there was only a covenant not to sue (or, as counsel submitted - a covenant not to sue again), seems to me, remote. The submission simply cannot stand against the express terms of the Deed, which under cl 4(a) uses terminology, 'the O'Neil parties release and discharge Cardup Industrial and Siciliano from any claim'. This submission fails.

79 A further contention, again found in the O'Neil parties' written submissions, adopted by the Bosvelds, aligns with issue (d), I have mentioned above. The submission was in these terms:

23. In equity the presumption that co-promisees are tenants in common is applicable to a debt held by two in common. The reasoning is applicable to other obligations. The presumption to a tenancy in common is to be rebutted. In this case the plaintiffs and the third defendants held (and hold) the land sold as tenants in common in equal shares. The submission was developed on this basis distinguishing the Wallace v Kelsall and Page v McKensey line of authority by reference to the intervention of equity 'in equity however the general rule in respect of a debt or obligation is that the co-promisees are to be treated as tenants in common and not

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joint tenants'. As a result, the agreement of both parties is required in order to discharge the entire debt or obligation; the language (' … joint interest in the debt or obligation') does not suggest application of the principle to debts only. Murray-Oates v JjaddPty Ltd [1999] SASC 537 Full Court) at 86 - 87. The principle applies to personal contracts, whether the debt is secured or not Steeds v Steeds (1889) 12 QBD 437, 541.

24. This is an application of the rule that equity leans against joint tenancies Meagher Gummow and Lehane: Equity Doctrines and Remedies (4th ed [3-150]).

25. Where such presumption arises the interests of the co-promisees are regarded as several. Referring to Haddon v Ayers (1888) 1 EL & EL 118; 120 ER 853; Whithers v Bursham (1824) 3 B&C 254; 107 ER 728 and Palmer v Sparshott (1842) 4 MAN&G 137; 134 ER 57.

26. If the document giving rise to the obligation provides that the debt or obligation owed to the co-promisees is joint, then equity follows the law, and treats the co-promisees as joint tenants. Murray-Oates [86]; Bell v Howe (1901) 26 VLR 511, 526.

80 But the presumption of equity, is rebuttable. In Steeds v Steeds, it was observed:

Mr Wood is, we think, right in saying that, as the defence is an equitable one, it is equally necessary to establish that payment by C., the obligor, to A., the latter being joint obligee with B., would in equity be an answer to the claim by A. and B. on the bond. We cannot follow Mr Bullen's argument that as equity would treat the satisfaction as equivalent to payment, having got so far, he is at liberty to discard any further reference to equity. And say that as at common law, payment to or release by A. would prevent A. and B. from suing, he is now in a position to treat A. as having been paid, and say that as this is a common law action there is the equivalent to a common law defence. If he is obliged to resort to equity for his defence, he must take the equitable principles applicable to the circumstances in their entirety; and we must therefore inquire what is the rule in equity with respect to payment to one of two co-obligees or co-creditors.

81 From the passage above in Steeds v Steeds, the jurisdiction of equity was clearly invoked for all purposes. But in present circumstances there is no longer any pursuit of equitable relief. Specific performance has not been pursued since October 2008. Cardup Holdings is only pursued for common law breach damages for loss of bargain. Mr Siciliano is sued for (common law) damages for breach of warranty of authority as agent, or for misrepresentation as to his agent's authority.

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82 The Deed entered by the O'Neil parties in 2010 both releases and discharges rights against Cardup Holdings and Mr Siciliano, by reason of a common law exposure to damages for alleged breach of contract and alleged breach of warranty. So, unlike in Steeds v Steeds, where the equitable jurisdiction of the court was directly in play, the present is not such a case.

83 Even if it were, the presumption of equity as to a tenancy in common, over a joint tenancy is rebuttable. For reasons I have already explained, the basal nature of this sale and purchase of land transaction and as well as any 'secondary liability' for breach damages claims - display that the vendors of lot 7 were the joint recipient of but one promise made by this purchaser, Cardup Holdings. The vendors were not therefore the holders of several rights in equal portions, as against the purchaser. On the facts here, any equitable presumption as to a tenancy in common is clearly rebutted: see Murray-Oates v Jjadd Pty Ltd [1999] SASC 537 [86] - [87] and Bell v Rowe (1901) 26 VLR 511, 526.

84 The Bosvelds' issue (d) submissions, contending for an open entitlement to proceed severally for damages, also invoked another line of case authority, commencing with a High Court decision, Lion White Lead Ltd v Rogers [1918] HCA 71; (1918) 25 CLR 533, where Isaacs and Rich JJ had observed:

If A and B jointly agree with C, and if C announces, before the normal moment of performance arrives, that he renounces the contract, it is competent for A and B jointly to accept that renunciation, and to terminate the contract. But that is a new agreement, and requires the assent of all. A may refuse, and, if so, B and C must abide by the bargain until the time for actual performance arrives. The contract may or may not then be normally performed. But once that time has arrived, if C commits an actual breach going to the root of the bargain, A has a right, by virtue of the contract already made, to say he will not proceed further, and he may refuse notwithstanding B's desire to waive his rights and proceed. The same necessity of a new bargain which in the case first put prevents A from altering the existing position prevents B in the second case from affecting A's accrued rights. (551)

Counsel for the Bosvelds put particular emphasis upon the last line in the above quotation from Lion White Leadv Rogers.

85 A further case relied upon was Carringville Pty Ltd v Gatto Group Pty Ltd [2003] NSWSC 123 [44] - [45], where it was contended that Young J had held that the Lion White Lead v Rogers principle applied, as
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between tenants in common, so that a right to terminate a contract could be exercised by any or all of the sellers.

86 The argument based upon these cases is summarised in the Bosvelds' written submissions, as follows:

21. Applying this principle, the plaintiffs hold the right to terminate and sue for damages.

22. On the other hand, waiver or variation by the [O'Neil parties] is ineffective as it is a positive act and therefore requires all parties to join. Alternatively, the only effect of the waiver is with respect to the [O'Neil parties'] rights, and it does not and cannot affect the [Bosvelds'] rights.

23. It is anticipated that in Order 18 rule 4, that a plaintiff may claim relief to which other persons are entitled jointly with him who do not consent to be joined as a plaintiff. In such circumstances, these parties must be made defendants.

87 In my assessment the Lion White Lead v Rogers principle has no application to present circumstances. The observations of Isaacs and Rich JJ, draw a clear distinction, as between a scenario of what would now be described as anticipatory breach by renunciation, against a rival scenario of actual breach by non-performance - going to the root of a bargain: see Net Parts International Pty Ltd v Kenoss Pty Ltd [2008] NSWCA 324 [22] (MacFarlane JA). Carringville v Gatto Group applies that principle, essentially as regards a severally held right to terminate, in the wake of serious breach of contract.

88 But, in the present circumstances, assuming there was a breach of the sale contract for lot 7 by Cardup Holdings, the relevant breach was by reference to the failure to settle, as purchaser. The amended statement of claim filed in the proceedings clearly shows that the right to terminate and to claim damages for breach - has here actually already been exercised, on behalf of all the vendors. Accordingly, there is no controversial issue about an exercise of termination rights. Paragraph 28 of the amended statement of claim (an amendment to the statement of claim under orders of Newnes J of 16 October 2008) reads:

Pursuant to clause 24.2(d) of the General Conditions, the plaintiffs terminated the contract on 9 October 2008 and claim damages being the difference in the value of the sale and purchase price of $12 million contained with the Contract and the value of the land as of the date of the termination being 9 October 2008 and other loss and damages incurred by the plaintiffs.

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89 That amendment leaves no doubt as to a decision by all vendors to terminate, by reason of asserted continuing breach on 9 October 2008, and from then, to pursue only loss of bargain breach damages. That decision was a joint decision of all plaintiffs, namely the O'Neil parties and the Bosvelds.

90 In these circumstances, the right to terminate a contract, which is the subject matter of the decisions in Lion White Lead v Rogers and Carringville v Gatto Group, has been unconditionally exercised. Afterwards then, in law, there arose a secondary damages liability in the purchaser (Cardup Holding) to pay damages, assuming always that the plaintiffs' causes of action for breach, and an effective termination, are established.

91 The plaintiffs, from 9 October 2008 have only been pursuing breach damages against Cardup Holdings, on a joint chose in action held by all the vendors of lot 7. I assess that jointly-held chose (right) to be, as a matter of legal principle, on all fours with the character of a right held by joint creditors as against their debtor. Therefore, I do consider it wholly appropriate to here apply and to follow, by analogy, the Wallace v Kelsall line of authority, as in effect did Hill J in Howard v Australian Jet Charter.

92 The effect then of the Deed of 2 February 2010, saw three of the five tenants in common (the O'Neil parties) put an end to their rights to pursue breach damages against Cardup Holdings and Mr Siciliano. In law, that event, I conclude, carried across to and impacts fatally, against the Bosvelds as 'would be' continuing plaintiffs, of the litigation. The consequence is that the Bosvelds, as from 2 February 2010, became inhibited from pursuing the jointly held chose in action for damages.

93 Unlike the facts of Steeds v Steeds, here equity will not, I think, assist the Bosvelds to proceed alone, as plaintiffs. Any presumption in equity towards tenancy in common (as against the joint enjoyment of choses in action for damages against Cardup Holdings and Mr Siciliano), is rebutted in present circumstances. The obligation under the sale and purchase contract upon Cardup Holdings as purchaser, in my view, was an obligation to purchase from the vendors, jointly. So also was any consequently arising 'secondary liability' in Cardup Holdings, in law, to pay damages - arising out of the breach of that sale contract by the non-performance breach. In those circumstances equity follows the law in assessing the co-promisees as joint.

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94 Accordingly there must be judgment for the first and second defendants as against the Bosvelds as residual plaintiffs. I reiterate that this conclusion says nothing as regards any obligations that might be owed as between the Bosvelds and the O'Neil parties. That field of controversy raises discrete issues which have not been pleaded, raised or determined by these applications.

95 The defendants' application for summary judgment should be granted and the action dismissed. Prima facie, the first and second defendants should have their costs of the action, as from 2 February 2010 to be taxed, but I will hear from the parties as to precise terms of orders to follow upon these reasons.

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