Tonner v Delaporte

Case [2018] WASCA 115


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:

  1. 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).

  2. For the reasons that follow, we would uphold the Buyers' challenge to the finding of repudiation.  The award of damages…

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Tonner v Delaporte [2018] WASCA 115
Case
[2018] WASCA 115
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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