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Tonner v Delaporte

Tonner v Delaporte

Case [2018] WASCA 115 25 July 2018

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   TONNER -v- DELAPORTE [2018] WASCA 115
CORAM:   MURPHY JA
BEECH JA
PRITCHARD J

HEARD:   23 MAY 2018
DELIVERED          :   25 JULY 2018
FILE NO/S:   CACV 88 of 2017
BETWEEN:   JOSEPH ANDREW TONNER
First Appellant
LINDA JANE TONNER
Second Appellant
AND
SHARON LOUISE DELAPORTE
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PARRY DCJ
File Number             :   CIV 1077 of 2016

Catchwords:

Contract - Contract for sale of land - Whether email sent by buyers was a repudiation - Turns on own facts

Legislation:

Nil

Result:

Appeal upheld
Primary judge's orders set aside
Order for repayment of deposit amount

Category: B

Representation:

Counsel:

First Appellant	:	Mr C S Williams
Second Appellant	:	Mr C S Williams
Respondent	:	Mr P G McGowan

Solicitors:

First Appellant	:	Solomon Brothers
Second Appellant	:	Solomon Brothers
Respondent	:	GV Lawyers

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

Browne v Dunn (1893) 6 R 67
C & P Syndicate Pty Ltd v Reddy [2013] NSWSC 643
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353
Delaporte v Tonner [2017] WADC 100
DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423
Eade v Vogiazopoulos (No 2) [1999] 3 VR 889
Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498
Fazio v Fazio [2012] WASCA 72
Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420
Foran v Wight [1989] HCA 51; (1989) 168 CLR 385
Hooper v Oates [2013] EWCA Civ 91; [2014] Ch 287
Koompahtoo Local Aboriginal Land Council v Sanpine Ltd [2007] HCA 61; (2007) 233 CLR 115
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; (1989) 166 CLR 623
Lords v von Thomann [No 2] [2014] WASC 320; (2014) 47 WAR 473
Ng v Filmlock Pty Ltd [2014] NSWCA 389; (2014) 88 NSWLR 146
RCR Tomlinson Ltd v Russell [2015] WASCA 154
Roxborough v Rothmans of Pall Mall Australia [2001] HCA 68; (2001) 208 CLR 516
Ryder v Frohlich [2004] NSWCA 472
Shevill v Builders Licensing Board [1982] HCA 47; (1982) 149 CLR 620
Summers v The Commonwealth [1918] HCA 33; (1918) 25 CLR 144

JUDGMENT OF THE COURT:

The appellants, Mr and Mrs Tonner (the Buyers) challenge the decision of the primary judge[1] awarding damages to the respondent, Mrs Delaporte (the Seller), for the Buyers' repudiation of their contract with the Seller to purchase her property. The Buyers challenge the finding that they repudiated the contract. They also challenge the award of damages.
[1] Delaporte v Tonner [2017] WADC 100 (primary reasons).
For the reasons that follow, we would uphold the Buyers' challenge to the finding of repudiation. The award of damages…

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 Tonner v Delaporte

Details

AGLC: Tonner v Delaporte [2018] WASCA 115
Case: [2018] WASCA 115
Decision Date: 25 JULY 2018

CaseChat Overview and Summary

The matter of Tonner v Delaporte involved a dispute between the plaintiffs, Tonner, and the defendants, Delaporte, concerning the sale of a property in Melbourne. The plaintiffs sought a declaration that the defendants had repudiated a contract for the sale of the property, and sought damages for the repudiation. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether an email sent by the buyers constituted a repudiation of the contract for the sale of land. The court was required to determine the nature of the communication and whether it demonstrated an unwillingness or inability to perform the contract. The court also needed to consider whether the email was a clear and unequivocal statement of repudiation, or if it could be interpreted in another way.

The court found that the email sent by the buyers was not a repudiation of the contract. The court held that the email did not demonstrate an unwillingness or inability to perform the contract, and that it could be interpreted in a way that did not amount to a repudiation. The court emphasised that each case must be determined on its own facts, and that the email in question did not clearly and unequivocally demonstrate a repudiation. The court also noted that the buyers had not taken any action that would suggest a repudiation of the contract.

The court dismissed the plaintiffs' claim for a declaration that the defendants had repudiated the contract, and also dismissed the claim for damages. The court held that the email sent by the buyers did not amount to a repudiation of the contract, and that the plaintiffs were not entitled to the relief they sought.

Orders