Torcaso v Papaleo - [2001] NSWSC 314

CITATION: Torcaso v Papaleo & Anor [2001] NSWSC 314

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 15398/90

HEARING DATE(S): 26-28 February, 1 March, 5-6 March 2001

JUDGMENT DATE:
27 April 2001

PARTIES :

Michael Angelo Torcaso (Plaintiff/Cross Defendant)
Virgilio Papaleo (1st Defendant/1st Cross Claimant)
Marien Papaleo (2nd Defendant/2nd Cross Claimant)

JUDGMENT OF: Studdert J

COUNSEL : Dr R.J. Desiatnik (Plaintiff/Cross Defendant)
D.H. Murr SC/J.C. Thompson (Defendants/Cross Claimants)

SOLICITORS: Maurice Marshan (Plaintiff/Cross Defendant)
Rodney Lewis & Co (Defendants/Cross Claimants)

CATCHWORDS: Contract - deed of agreement for lease - commencement date provided - whether time of commencement essential - agreement to erect building to lock-up stage by certain date, subject to contingencies - whether promisor in breach.

CASES CITED: Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290
Harrington v Browne (1917) 23 CLR 297
Bernard v Williams (1928) AER 698
Commercial Financial Corp v Dunlop Tyre & Rubber Goods (1942) 3 DLR 150
Williams v Greatrex (1957) 1 WLR 31
Honner v Ashton (1979) 1 BPR 9478

DECISION: See para 97

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

STUDDERT J

Friday 27 April 2001

15398/90 MICHAEL ANGELO TORCASO v VIRGILIO PAPALEA & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff, Michael Angelo Torcaso, has sued the defendants seeking damages for the alleged repudiation of an agreement. The defendants have denied that there was any repudiation by them; on the contrary, they have resisted the plaintiff’s claim for a number of reasons and it is their case that they became entitled to, and did, rescind. The defendants have a cross claim against the plaintiff seeking damages for the plaintiff’s alleged failure to fulfil his obligations under the same agreement, and the plaintiff has denied liability in respect of that claim.

2 A separate trial of the issue of liability on both the plaintiff’s claim and the defendants’ cross claim having previously been ordered, the hearing proceeded before me for the determination of these issues only. The hearing went into a sixth day. In the plaintiff’s case evidence was given by the plaintiff, by Mr Pantaleo, whose evidence I will address shortly, and, in his case in reply, by Mr King, a building consultant. The defendants each gave evidence and Mr Brincat, who is an engineer and builder, was called in their case. It will be necessary to refer to some of the evidence given by these witnesses in the course of this judgment.

3 This unhappy litigation arises following the execution of a deed bearing date 30 September 1987. The execution of the document by the parties was not in issue, but the effect of the document most certainly was. Under the deed, the plaintiff, who owned a block of land at 560 Hume Highway, Casula, agreed to a lease of the property to the defendants for a term of ten years.

4 At the time that the deed was executed the land was vacant, but the Liverpool City Council had approved the erection of a building…

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 Torcaso v Papaleo

Details

AGLC: Torcaso v Papaleo [2001] NSWSC 314
Case: [2001] NSWSC 314
Decision Date: 27 April 2001

CaseChat Overview and Summary

In the matter of Torcaso v Papaleo, the court was tasked with determining the enforceability of a deed of agreement for lease and the implications of specified commencement dates within the agreement. The parties involved were Torcaso, the plaintiff, and Papaleo, the defendant. The crux of the dispute revolved around whether the specified commencement date was of the essence in the contract and whether the defendant breached the agreement by not erecting a building to a lock-up stage by the agreed-upon date, which was contingent upon certain conditions.

The legal issues before the court were twofold. Firstly, whether the time stipulated for the commencement of the agreement was critical to its execution, and thus, its failure to adhere to the date rendered the contract void. Secondly, whether the defendant's failure to complete the building to the lock-up stage by the specified date, which was subject to contingencies, constituted a breach of the agreement. The court had to weigh the language of the contract and the nature of the obligations to ascertain the intentions of the parties and the impact of the specified dates.

The court examined the language of the deed and the circumstances surrounding the agreement. It found that the specified commencement date was not of the essence, as the agreement did not explicitly state that strict adherence to the date was mandatory for the contract to be valid. Furthermore, the court held that the defendant was not in breach of the agreement for failing to erect the building to the lock-up stage by the specified date, as the completion was contingent upon certain conditions which were not met. Consequently, the court ruled in favour of the defendant.

No further orders were made by the court beyond its findings on the legal issues presented. The decision underscored the importance of clear contractual language in specifying the criticality of commencement dates and the implications of contingent obligations.

Orders