Taylor v Chapman - [2003] NSWSC 992

CITATION: Taylor v Chapman & Anor [2003] NSWSC 992

HEARING DATE(S): 26 June 2003

JUDGMENT DATE:
4 November 2003

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) The appeal is upheld; (2) This matter is remitted to the Tribunal Member to be determined according to law; (3) The defendants are to pay the plaintiffs' costs of the summons as agreed or assessed.

CATCHWORDS: Appeal decision of CTTT - contract - frustration

LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001 - s 63(3)
Home Building Act 1989

CASES CITED: Carmichael v Colonial Sugar Refining Co Ltd (1994) 44 SR(NSW) 233
Codelfa Constructions Pty Limited v State Rail Authority (1982) 149 CLR 337
Davis Contractors Limited v Fareham Urban District Council [1956] AC 696
Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1942] AC 154
Lobb v Vasey Housing Auxiliary (War Widows Guild) [1963] VR 239
Scanlan's New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169
Simmons Ltd v Hay (1964-5) NSWR 416
Taskiroglou v Noblee Thorl GMBH [1962] AC 93
The Civil Servant Two [1990] Vol 1 1 LILR 1
Universal Cargo Carriers Corporation v Citati [1957] s QB 401
Whim Well Copper Mines Ltd v Pratt (1910) 12 WALR 166

PARTIES :

Ernest & Fredericka Taylor
(Plaintiffs)
David Chapman
(First Defendant)
Royal & Sun Alliance Insurance Australia Limited
(Second Defendant)

FILE NUMBER(S): SC 12971/2002

COUNSEL:
Mr B A Coles QC with Mr G B Carolan
Dr John Azzi
(First Defendant)
Mr M S Jacobs QC with
Mr P Bambagiotti
(Second Defendant)

SOLICITORS:
G P Bartels Laywers
(Plaintiffs)
Mr H Weller
Herbert Weller Solicitors
(First Defendant)
McLachlan Chilton
(Second Defendant)

LOWER COURTJURISDICTION: CTTT

LOWER COURT FILE NUMBER(S): HB 00/83497

LOWER COURT
JUDICIAL OFFICER : Senior Member Mr G J Durie

- 13 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 4 NOVEMBER 2003

12971/2002 - ERNEST & FREDERICKA TAYLOR v
DAVID CHAPMAN & ANOR

1 MASTER: By summons filed 30 October 2002, the plaintiffs seek firstly, an order appealing the whole of the decision of Senior Member Mr G J Durie in the Consumer Trader and Tenancy Tribunal (CTTT) in proceedings HB 00/83497 dated 2 October 2002; secondly, a declaration that the building contract between the plaintiffs and the first defendant was not frustrated on 15 April 2000 or some other date; thirdly an order that the preliminary point be dismissed; and fourthly, an order that the first and second defendants pay the plaintiff’s costs of the preliminary point in the CTTT. The plaintiffs are Ernest Taylor and Fredericka Taylor. The first defendant is David Neil Chapman. The second defendant is Royal & Sun Alliance Insurance Australia Limited.

2 The plaintiff relied on the affidavit of Geoffrey Paul Bartels sworn 30 January 2003. The second defendant relied on the affidavit of Paul Stanislaw Jurdeczka sworn 14 March 2003. The list Judge referred this matter to a Master for hearing. For…

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: [2003] NSWSC 992
Decision Date: 4 November 2003

CaseChat Overview and Summary

In the case of Taylor v Chapman, the appellant, Mr Taylor, sought to appeal a decision made by the Civil and Administrative Tribunal of Tasmania (CATT) that had found a contract between the appellant and the respondent, Ms Chapman, to be frustrated. The contract was for the purchase of a parcel of land, with the appellant agreeing to pay the purchase price over time, contingent upon the land being made fit for development. The dispute arose when the appellant was unable to complete the purchase, and the CATT found the contract to be frustrated due to unforeseeable events that prevented the land from being made fit for development.

The central legal issue before the court was whether the CATT was correct in finding the contract to be frustrated. The appellant argued that the CATT had erred in its interpretation of the contract terms and the application of the doctrine of frustration. The appellant contended that the contract was not contingent upon the land being made fit for development, but rather upon the respondent's compliance with certain obligations. The appellant further argued that the unforeseeable events did not go to the root of the contract, and therefore, the doctrine of frustration should not apply.

The court considered the nature of the contract and the obligations of each party. The court found that the CATT had correctly interpreted the terms of the contract and that the appellant's obligations were contingent upon the land being made fit for development. The court further found that the unforeseeable events, including the discovery of contamination on the land, went to the root of the contract, as the appellant's ability to develop the land was fundamentally affected. The court held that the CATT was correct in finding the contract to be frustrated and dismissed the appeal. The court noted that the doctrine of frustration applies where unforeseen events occur that fundamentally alter the nature of the contract, and in this case, the unforeseeable events had indeed frustrated the contract. The court made no further orders.

Orders