Twinbrook Corporation Pty Ltd v Mayne - [2006] WASC 293

TWINBROOK CORPORATION PTY LTD -v- MAYNE & ORS [2006] WASC 293

Link to Appeal :

[2008] WASCA 131

Jurisdiction: SUPREME COURT OF WESTERN AUSTRALIA Citation No: [2006] WASC 293

Case No: CIV:1616/2006 Heard: 27 & 28 NOVEMBER 2006
Coram: MASTER SANDERSON Delivered: 19/12/06

No of pages: 10       Judgment Part:        1 of 1
Result:          Declaration contracts still on foot
Operation of caveat extended
Category:      B

PDF Version
Parties: TWINBROOK CORPORATION PTY LTD
WILLIAM ERNEST MAYNE
JENNIFER MAY MAYNE
TERRY ERNEST BARTER
LINDA CHRISTINE BARTER
MAYNE ENTERPRISES PTY LTD
LANSOFT ENTERPRISES PTY LTD
REGISTRAR OF TITLES

Catchwords:
Contracts
Whether contract for sale of hotel licence validly terminated
Turns on own facts

Legislation:
Liquor Licensing Act 1988 (WA), s 84(2)

Case References:
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20
Gregory v MAB Pty Ltd (1989) 1 WAR 1
Meehan v Jones (1982) 149 CLR 571
Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429
Gange v Sullivan (1966) 116 CLR 418
Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419
Lysaght v Edwards (1876) 2 Ch D 499
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Sanctuary Investments Pty Ltd v St Gregory's Armenian School Inc (1999) ANZ ConvR 454
Sandra Investments Pty Ltd v Booth (1983) 153 CLR 153
Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : TWINBROOK CORPORATION PTY LTD -v- MAYNE & ORS [2006] WASC 293

CORAM : MASTER SANDERSON

HEARD : 27 & 28 NOVEMBER 2006

DELIVERED : 20 DECEMBER 2006

FILE NO/S : CIV 1616 of 2006

MATTER : Section 138B of the Transfer of Land Act 1893 (WA)

and

Caveat J692081

BETWEEN : TWINBROOK CORPORATION PTY LTD

Plaintiff

AND

WILLIAM ERNEST MAYNE
    JENNIFER MAY MAYNE
    TERRY ERNEST BARTER
    LINDA CHRISTINE BARTER
    MAYNE ENTERPRISES PTY LTD
    LANSOFT ENTERPRISES PTY LTD
    First Defendants

REGISTRAR OF TITLES
Second Defendant

(Page 2)

Catchwords:

Contracts - Whether contract for sale of hotel licence validly terminated - Turns on own facts

Legislation:

Liquor Licensing Act 1988 (WA), s 84(2)

Result:

Declaration contracts still on foot

Operation of caveat extended

Category: B

Representation:

Counsel:

Plaintiff : Mr G R Hancy
First Defendants : Mr J C Curthoys
Second Defendant : No appearance

Solicitors:

Plaintiff : Denis Meagher
First Defendants : Slee Anderson & Pidgeon
Second Defendant : No appearance

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

BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20
Gregory v MAB Pty Ltd (1989) 1 WAR 1
Meehan v Jones (1982) 149 CLR 571
Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429

(Page 3)

Case(s) also cited:

Gange v Sullivan (1966) 116 CLR 418
Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419
Lysaght v Edwards (1876) 2 Ch D 499
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Sanctuary Investments…

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: [2006] WASC 293
Decision Date: 20 DECEMBER 2006

CaseChat Overview and Summary

Twinbrook Corporation Pty Ltd, the plaintiff, initiated legal proceedings against William Ernest Mayne, Jennifer May Mayne, Terry Ernest Barter, Linda Christine Barter, Mayne Enterprises Pty Ltd, Lansoft Enterprises Pty Ltd, and the Registrar of Titles, the defendants, in the Supreme Court of Western Australia. The plaintiff sought a declaration that contracts for the sale of the Burlington Hotel and its business were still valid and enforceable, and for an extension of the operation of a caveat lodged on the property. The Burlington Hotel, located in Bunbury, was the subject of two agreements between the plaintiff and the first defendants: one for the sale of the property, and another for the sale of the hotel business. The first defendants contended that both contracts were void due to non-compliance with the Liquor Licensing Act 1988 (WA), uncertainty in the settlement conditions, and a failure to obtain planning approvals within a reasonable time. The court examined each of these arguments in turn.

Regarding the Liquor Licensing Act, the court found that the sale agreement was not illegal as it was subject to a condition precedent requiring the transfer of the liquor licence to the purchaser. This complied with the Act's requirements. As for the uncertainty in the settlement conditions, the court held that the contracts were not void due to uncertainty, as they were capable of a clear meaning and the parties had been aware of the need for planning approvals. Finally, the court ruled that the plaintiff had not breached the implied term of obtaining planning approvals within a reasonable time, as the plaintiff had taken steps to progress the approvals process and the first defendants had not followed the proper procedure to terminate the contract.

The court concluded that the contracts for the sale of the hotel premises and the business were still valid and enforceable, granting the plaintiff a proprietary interest sufficient to maintain the caveat. The court directed the parties to discuss a practical solution to the dispute, either through negotiation or an alternative process, and addressed the issue of costs.

Orders