Umbers v Kelson

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE		Not Restricted

COMMON LAW DIVISION

No. 4066 of 2007

GARY ROWLAND UMBERS	Appellant
V
TIMOTHY JOHN KELSON and MICHELLE INA KELSON	Respondents

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JUDGE:	SMITH J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 April 2008
DATE OF JUDGMENT:	11 September 2008
CASE MAY BE CITED AS:	Umbers v Kelson
MEDIUM NEUTRAL CITATION:	[2008] VSC 348

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Magistrates’ Court appeal – judgment for damages for breach of contract for sale of business – finance clause – non-completion – whether Magistrate found contract terminated or on foot - whether error in finding of estoppel – adequacy of reasons.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr W Gillies	Maddens
For the Respondents	Mr M Bevan –John and Mr D Laidlaw	Jellie McDonald

HIS HONOUR:

The Appeal

1. By notice of appeal dated 9 January 2007, the appellant, Gary Rowland Umbers (the purchaser) has appealed from an order of the Magistrates’ Court requiring him to pay the sum of $61,524.20, together with interest of $3959.46 and costs of $8,962.00 to the respondents, Timothy John Kelson and Michelle Ina Kelson (the vendors).  The learned Magistrate also dismissed the purchaser’s counter-claim.  This appeal is brought against the whole of the order.

1. By order dated 12 February 2007 Master Efthim gave leave to amend the notice of appeal to state the following questions and grounds

“The question of law upon which the appeal is brought is:

1.On the evidence before the Court, it was not open to reach the conclusions that it did.

2.The Learned Magistrate failed to provide adequate reasons for his decision.

3.The Learned Magistrate erred in law in finding that the conduct of the appellant estopped him from relying upon the finance clause in the contract of sale.

4.The Learned Magistrate erred in law in finding the respondents had adopted an assumption that the appellant was proceeding with the contract and/or had waived his reliance in the subject to finance.

5.The Learned Magistrate erred in law as set out in the Grounds for Appeal.

Grounds of appeal:

The Learned Magistrate:

1.erred in finding that the conduct of the appellant/defendant estopped him from relying upon the finance clause in the contract of sale between the appellant/defendant and the respondents/plaintiffs;

2.erred in finding that the respondents/plaintiffs had adopted an assumption that the appellant/defendant was proceeding with the contract of sale;

3.erred in finding that the appellant/defendant had waived his reliance on the subject to finance clause;

4.erred in finding that the contract of sale had not come to and end once finance had not been obtained and the subject to finance clause had been complied with;

5.erred in finding that detriment had been suffered by the respondents/plaintiffs;

6.erred in finding that the loss and damage suffered by the respondents/plaintiffs was different from the detriment suffered by the respondents/plaintiffs;

7.        failed to give adequate reasons explaining his decision.”

The original  Magistrates’ Court proceedings - pleadings

1. The vendors…