Upside Property Group Pty Ltd v Tekin - [2017] NSWCA 336

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Upside Property Group Pty Ltd v Tekin [2017] NSWCA 336
Hearing dates: 25 May 2017
Decision date: 18 December 2017
Before: McColl JA at [1];
Macfarlan JA at [2];
Meagher JA at [3]
Decision:
1. Appeal dismissed.
2. The appellant to pay the respondent’s costs of the appeal.

Catchwords:
CONTRACTS – anticipatory breach – where vendor repudiated contract for sale of development land and purchaser elected to terminate – where purchaser brings action in damages for loss of bargain – whether purchaser satisfied requirement that it was not substantially incapacitated from performance at time of termination – whether primary judge erred in formulation of that test of readiness and willingness – whether purchaser also required to prove on balance of probabilities that it would have proceeded to completion but for repudiation
VALUATION – development land – evidence of informal and unaccepted offers – whether primary judge erred in giving no significant weight to that evidence
Legislation Cited: Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited: Auxil Pty Ltd v Terranova [2009] WASCA 163; (2009) 260 ALR 164
Commonwealth v Amann Aviation (1991) 174 CLR 64
Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48
De Medina v Norman (1842) 9 M & W 820; 152 ER 347
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Foran v Wight (1989) 169 CLR 385
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hensley v Reschke (1914) 18 CLR 452
Hochster v De la Tour (1853) 3 El & Bl 678
Hoffman v Cali [1985] 1 Qd R 253
Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26
Michael Realty Pty Ltd v Carr [1977] 1 NSWLR 553
MMAL Rentals Pty Limited v Bruning (2004) 63 NSWLR 167; [2004] NSWCA 451
Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235
Psaltis v Shultz (1948) 76 CLR 547
Rawson v Hobbs (1961) 107 CLR 466
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Sharjade Pty Ltd v The Commonwealth [2009] NSWCA 373; (2009) 15 BPR 28,443
Y P Barley Producers Ltd v E C Robertson Pty Ltd [1927] VLR 194
Category: Principal judgment
Parties: Upside Property Group Pty Ltd (Appellant)
Celal Tekin (Respondent)
Representation:
Counsel:
J Stoljar SC and P Reynolds (Appellant)
GA Sirtes SC and A Cornish (Respondent)
Solicitors:
MLH Lawyers (Appellant)
Low Dougherty & Stratford (Respondent)

File Number(s): 2016/292021
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2016] NSWSC 1260

Date of Decision:

12 September 2016

Before:

Darke J

File Number(s):

2015/133351

Headnote

[This headnote is not to be read as part of the decision]

The parties entered into a contract for the sale of a large development site in Castle Hill and a side deed permitting each to…

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: [2017] NSWCA 336
Decision Date: 18 December 2017

CaseChat Overview and Summary

Upside Property Group Pty Ltd (the vendor) and Tekin (the purchaser) were parties to a contract for the sale of development land. The vendor repudiated the contract, and the purchaser elected to terminate and commenced an action for damages for loss of bargain. The appeal concerned whether the purchaser had satisfied the requirement of being not substantially incapacitated from performance at the time of termination, and whether the primary judge had erred in formulating this test. A further issue was whether the purchaser was required to prove on the balance of probabilities that it would have proceeded to completion but for the repudiation. The appeal was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the primary judge had correctly applied the legal principles relating to anticipatory breach of a contract for sale. Specifically, the court had to consider the purchaser's obligation to demonstrate readiness and willingness to perform its obligations under the contract at the time of termination, and the standard of proof required for this demonstration. The court also considered whether the primary judge had erred in the weight given to evidence of informal and unaccepted offers concerning the valuation of the development land.

The Court of Appeal held that the primary judge had not erred in formulating the test for readiness and willingness, nor in concluding that the purchaser had satisfied this requirement. The court affirmed that a purchaser need not prove on the balance of probabilities that it would have completed the purchase but for the vendor's repudiation; rather, it is sufficient to show that the purchaser was not substantially incapacitated from performing its obligations. Regarding the valuation evidence, the court found no error in the primary judge’s assessment of the weight to be given to informal offers.

The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant to pay the respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Upside Property Group Pty Ltd v Tekin [2017] NSWCA 336
Hearing dates:	25 May 2017
Decision date:	18 December 2017
Before:	McColl JA at [1]; Macfarlan JA at [2]; Meagher JA at [3]
Decision:	1. Appeal dismissed. 2. The appellant to pay the respondent’s costs of the appeal.
Catchwords:	CONTRACTS – anticipatory breach – where vendor repudiated contract for sale of development land and purchaser elected to terminate – where purchaser brings action in damages for loss of bargain – whether purchaser satisfied requirement that it was not substantially incapacitated from performance at time of termination – whether primary judge erred in formulation of that test of readiness and willingness – whether purchaser also required to prove on balance of probabilities that it would have proceeded to completion but for repudiation VALUATION – development land – evidence of informal and unaccepted offers – whether primary judge erred in giving no significant weight to that evidence
Legislation Cited:	Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited:	Auxil Pty Ltd v Terranova [2009] WASCA 163; (2009) 260 ALR 164 Commonwealth v Amann Aviation (1991) 174 CLR 64 Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48 De Medina v Norman (1842) 9 M & W 820; 152 ER 347 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Foran v Wight (1989) 169 CLR 385 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hensley v Reschke (1914) 18 CLR 452 Hochster v De la Tour (1853) 3 El & Bl 678 Hoffman v Cali [1985] 1 Qd R 253 Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 Michael Realty Pty Ltd v Carr [1977] 1 NSWLR 553 MMAL Rentals Pty Limited v Bruning (2004) 63 NSWLR 167; [2004] NSWCA 451 Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235 Psaltis v Shultz (1948) 76 CLR 547 Rawson v Hobbs (1961) 107 CLR 466 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 Sharjade Pty Ltd v The Commonwealth [2009] NSWCA 373; (2009) 15 BPR 28,443 Y P Barley Producers Ltd v E C Robertson Pty Ltd [1927] VLR 194
Category:	Principal judgment
Parties:	Upside Property Group Pty Ltd (Appellant) Celal Tekin (Respondent)
Representation:	Counsel: J Stoljar SC and P Reynolds (Appellant) GA Sirtes SC and A Cornish (Respondent) Solicitors: MLH Lawyers (Appellant) Low Dougherty & Stratford (Respondent)
File Number(s):	2016/292021
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2016] NSWSC 1260 Date of Decision: 12 September 2016 Before: Darke J File Number(s): 2015/133351