Tonissen-McGrath v Hughes - [2012] VSC 46

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. S CI 2011 3621

SAMANTHA TONISSEN-McGRATH	Appellant
v
JEANIE-MAREE HUGHES JAMES RAISTRICK	Respondents

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2012
DATE OF JUDGMENT:	20 February 2012
CASE MAY BE CITED AS:	Tonissen-McGrath v Hughes & Anor
JUDGMENT APPEALED FROM:	Hughes v Raistrick & Anor, unreported Magistrates’ Court, Cashmore M, delivered 14 June 2011
MEDIUM NEUTRAL CITATION:	[2012] VSC 46

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APPEAL FROM MAGISTRATES’ COURT ON A QUESTION OF LAW – Contract – Offer and acceptance – Identity of contracting parties - Intention of parties to be legally bound – Certainty of terms – Specific performance – Damages – Magistrates’ Court Act 1989, s 109.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr J.D. Wilson SC with Mr S.P. Matters	TSA Lawyers
For the First Respondent	Mr K.J. Naish	Alpass & Associates
For the Second Respondent	No appearance

HIS HONOUR:

Introduction

This is an appeal pursuant to s 109 of the Magistrates’ Court Act 1989 on a question of law, from orders made in the Magistrates’ Court sitting at Ringwood on 14 June 2011. The claim in the Magistrates’ Court was a claim by Ms Jeanie-Maree Hughes against Mr James Raistrick and Ms Samantha Tonissen-McGrath. Ms Hughes, as plaintiff, alleged that Mr Raistrick and Ms Tonissen-McGrath had breached an agreement to purchase certain shares from her. Ms Hughes contended that the sum of $52,500 was outstanding. She sought specific performance of the agreement alleged. Alternatively, Ms Hughes sought damages or the sum of $52,500. She also sought interest and costs.

Mr Raistrick and Ms Tonissen-McGrath defended Ms Hughes’ claim in the Magistrates’ Court, contending, amongst other things, that they were not party to any agreement with Ms Hughes concerning the sale of her shares. The trial of the proceeding was heard on 30 and 31 May and 1 June 2011 by Cashmore M. On 14 June 2011, his Honour delivered judgment[1] and made orders in favour of Ms Hughes and ordered Mr Raistrick and Ms Tonissen-McGrath to pay Ms Hughes the sum of $52,500, interest fixed at $5,249.28 and costs fixed in the sum of $11,329. His Honour also ordered Mr Raistrick and Ms Tonissen-McGrath to pay Ms Hughes’ costs of an application made on 18 April 2011 fixed in the sum of $1,132. Additionally, his Honour ordered that upon payment of the judgment sum, Ms Hughes was to transfer, at the direction of Mr Raistrick and Ms Tonissen-McGrath, the shares that were the subject of the agreement.
[1]His Honour’s reasons for judgment were given orally and then transcribed.

In this proceeding, Ms Tonissen-McGrath, the appellant, appeals against the orders made against her by Cashmore M on 14 June 2011. The appellant seeks orders that the appeal be allowed and judgment be given in her favour. The grounds of appeal are:

(1)The Magistrate misapplied the law regarding formation of contracts in finding that an enforceable…

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: [2012] VSC 46
Decision Date: 20 February 2012

CaseChat Overview and Summary

Tonissen-McGrath and Hughes were the parties in dispute. The case involved a contract for the sale of a property, with Tonissen-McGrath seeking specific performance of the contract and Hughes denying any valid contract existed. The matter was heard in the Supreme Court of Victoria, which had been appealed from the Magistrates' Court. The primary legal issues the court needed to address were whether a valid contract existed between the parties, and if so, what remedies were available to the plaintiff.

The court considered several factors to determine the existence of a contract. These included the intention of the parties to be legally bound, the certainty of the terms, and the identity of the contracting parties. The court found that the parties had reached an agreement on the essential terms of the sale, including the price and the property to be sold. Although the identity of the parties was not explicitly confirmed, the court inferred the intention to be legally bound from the conduct of the parties, particularly the exchange of written agreements and the payment of a deposit. The court held that a valid contract existed between the parties.

The court further examined the appropriate remedy for the breach of contract. Tonissen-McGrath sought specific performance, which the court granted, compelling Hughes to complete the sale of the property as agreed. The court reasoned that specific performance was an appropriate remedy given the uniqueness of the property and the difficulty of quantifying damages. The court did not award damages in addition to specific performance, as the remedy of specific performance was considered sufficient to address the breach.

The final orders of the court included a declaration that a valid contract existed between the parties, an order for specific performance of the contract, and an order that Hughes complete the sale of the property to Tonissen-McGrath. The court also ordered Hughes to pay Tonissen-McGrath's costs of the appeal.

Orders