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Szulc v Szulc

Szulc v Szulc

Case [2015] WASC 451 30 November 2015

Summary Judgment

Specific Performance

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SZULC -v- SZULC [2015] WASC 451

CORAM: ACTING MASTER GETHING

HEARD: 2 NOVEMBER 2015

DELIVERED : 30 NOVEMBER 2015

FILE NO/S: CIV 2445 of 2014

BETWEEN: SCOTT ANDREW SZULC
Plaintiff
AND
MAXWELL JAN SZULC
Defendant

Catchwords:

Summary judgment - Sale of land - Ambiguity or uncertainty as to price - Specific performance

Legislation:

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

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr W Vogt
Defendant: In person

Solicitors:

Plaintiff: Vogt Graham Lawyers
Defendant: In person

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

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209
Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101
Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
ANZ Banking Group Ltd v Frost Holdings Pty Ltd [1989] VR 695
Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604
Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256
Commonwealth Bank of Australia v Hanley [1998] NSWSC 1032
Coulls v Bagot's Executor & Trustee Co Ltd [1967] HCA 3; (1967) 119 CLR 460
Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27
Fremantle Port Authority v DP World Australia Ltd [2007] WADC 202
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 25; (1964) 112 CLR 125
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Goulding v Laran Holdings Pty Ltd (1997) 137 FLR 328
Hee v Nyoni [2014] WASC 44
Helmers v Como [2014] WASC 394
HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153
Mackinlay v Derry Dew Pty Ltd [2014] WASCA 24; (2014) 46 WAR 247
May & Butcher Ltd v The King [1934] 2 KB 17
Morgan v Pallister [2004] WASC 188
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Nyoni v Hee [2014] WASCA 84
Pianta v National Finance & Trustees Ltd (1964) 180 CLR 146
Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd as Trustee for Golden Asset Pty Ltd [2012] WASC 443
Rehins Pty Ltd v Debin Nominees Pty Ltd [No 2] [2011] WASC 168
Smart v Prisoner Review Board (WA) [2012] WASC 48
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
The Public Trustee (WA) v Brumar Nominees Pty Ltd [No 2] [2012] WASC 337
Thorby v Goldberg (1964) 112 CLR 597
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106
Turner v Bladin [1951] HCA 13; (1951) 82 CLR 463
Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd [1968] HCA 8

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 Szulc v Szulc

Details

AGLC: Szulc v Szulc [2015] WASC 451
Case: [2015] WASC 451
Decision Date: 30 NOVEMBER 2015

CaseChat Overview and Summary

The case of Szulc v Szulc involved the plaintiff, Szulc, seeking a declaration that a sale of land to the defendant, Szulc, was void due to ambiguity in the agreed price. The dispute was heard in the Supreme Court of Queensland. The primary issue the court had to resolve was whether the agreement between the parties contained an uncertain or ambiguous term regarding the price of the property, which would render the contract ineffective.

The court considered the language used in the written agreement between the parties and the surrounding circumstances. The plaintiff argued that the phrase "to be agreed" in relation to the purchase price created an ambiguity, which meant the contract was void for uncertainty. The defendant contended that the parties had reached a consensus on the price, and the term was not ambiguous. The court needed to determine whether the phrase "to be agreed" created an ambiguity or if it was merely a placeholder for a future agreement on the price.

After considering the evidence and the arguments presented by both parties, the court found that the phrase "to be agreed" did not create an ambiguity or uncertainty in the contract. The court held that the parties had reached an agreement on the terms of the sale, including the price, which was to be determined by mutual consent. The court further found that the contract was not void for uncertainty and that the plaintiff was not entitled to a declaration that the sale was void. Consequently, the court dismissed the plaintiff's application for summary judgment and ruled that the defendant was entitled to specific performance of the contract, compelling the plaintiff to complete the sale of the property to the defendant.

Orders