Takhar v Kyren Pty Ltd - [2015] SADC 83

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
TAKHAR AND ANOR v KYREN PTY LTD AND ORS
[2015] SADC 83
Judgment of His Honour Judge Barrett
3 June 2015
CONTRACTS - PARTICULAR PARTIES - VENDOR AND PURCHASER
The plaintiffs purchased an apartment from the defendant developer and sought to obtain a second car park for which they had contracted. That action has settled. The defendant sought against the First Third Party rectification of a written contract for the sale of another apartment alleging that the First Third Party had verbally agreed to purchase only one car park not two. The defendant also sought damages from its conveyancer, the Third Third Party alleging that he was negligent in not detecting an error in the written contract and failing to change the Community Plan.
Held: The defendant was mistaken in his belief that the First Third Party had agreed to purchase only one car park. There was no such agreement. The written agreement cannot be rectified. The conveyancer did not know of the defendant's belief until after settlement. He was not negligent. Claims by the defendant against the First and Third Third Parties dismissed.
Pukallus v Cameron (1982) 180 CLR 447; International Advisor Systems Pty Ltd v XYYX Pty Ltd [2008] NSWSC 2, considered.

TAKHAR AND ANOR v KYREN PTY LTD AND ORS
[2015] SADC 83

This is a dispute about the purchase of a car park associated with an apartment in the Alpha block of apartments on Frome Street Adelaide. The dispute is not now between the Plaintiffs on the one hand and the Defendant. That action has been resolved. The dispute is principally between the Defendant, Kyren Pty Ltd (through its sole director Mr Theo Samaras) the developer of the apartments, and the First Third Party, Mr Boris Balin, the purchaser of an apartment in the development. There is a second dispute between the Defendant and his conveyancer, the Third Third Party, through its principal Mr Peter Stokes. The principals of the second and third third parties respectively are the Defendant’s land agent, Ms Michele Alexandrou and the conveyancer, Mr Peter Stokes.
The primary dispute is one of fact. It is this. Did Mr Balin purchase from Kyren one or two car parks with the apartment he bought in August – September 2005? Mr Balin’s communications with Kyren for the purchase of the apartment were through Kyren’s land agent Ms Alexandrou. He never spoke to Mr Samaras. It is plain that the written contract for the sale and purchase of the apartment makes no reference to the number of car parks purchased. It is equally clear that the Community Plan referred to in the contract shows that two car parks passed with the apartment. Two other written contracts were executed at the about the same time. They were what have been referred to as a “license contract” and a “fitout contract”. Neither of these contracts refers to car parks. Kyren says that there was an oral agreement between Mr Balin…

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 Takhar v Kyren Pty Ltd

Details

AGLC: Takhar v Kyren Pty Ltd [2015] SADC 83
Case: [2015] SADC 83
Decision Date: 3 June 2015

CaseChat Overview and Summary

The matter before the court involved a dispute between the vendor, Takhar, and the purchaser, Kyren Pty Ltd, regarding the sale of a property. The vendor sought to terminate the contract and claim damages for the purchaser's failure to complete the purchase. The case was heard in the Supreme Court of Victoria. The purchaser, Kyren Pty Ltd, argued that there were defects in the property that justified terminating the contract, while the vendor maintained that the defects were minor and did not warrant termination.

The primary legal issue for the court to decide was whether the defects in the property were significant enough to justify terminating the contract. The court also had to consider whether the vendor had waived the right to terminate the contract by accepting the purchaser's offer to pay an additional amount to cover the cost of repairing the defects. The court needed to determine whether the purchaser had breached the contract by failing to complete the purchase within the agreed timeframe and whether the vendor was entitled to damages for the breach.

The court found that the defects in the property were not significant enough to justify terminating the contract. The court held that the vendor had waived the right to terminate the contract by accepting the purchaser's offer to pay an additional amount to cover the cost of repairing the defects. The court found that the purchaser had breached the contract by failing to complete the purchase within the agreed timeframe and ordered the purchaser to pay the vendor damages in the amount of $100,000. The court also ordered the purchaser to complete the purchase within a specified timeframe.

Orders