Van Der Feltz v Rispoli - [2024] WADC 20

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   VAN DER FELTZ -v- RISPOLI [2024] WADC 20
CORAM:   TOVEY DCJ
HEARD:   20 JULY 2023
DELIVERED          :   15 APRIL 2024
FILE NO/S:   APP 3 of 2023
BETWEEN:   RIC VAN DER FELTZ
First Appellant
STEPHAN MATTHAUS
Second Appellant
AND
ROSA RISPOLI
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE WARD
File Number            :   PER/GCLM/7277/2021

Catchwords:

Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

First Appellant	:	Mr C S Williams
Second Appellant	:	Mr C S Williams
Respondent	:	Mr A M Houghton

Solicitors:

First Appellant	:	Solomon Brothers
Second Appellant	:	Solomon Brothers
Respondent	:	Arns & Associates

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

Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271
Browne v Dunn (1893) 6 R 67
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22
Moyes v ENSCO Australia Pty Ltd [2022] WASCA 104
NCH v The State of Western Australia [2013] WASCA 29
Paroz v Paroz [2010] QCA 362
Smart v Power [2019] WASCA 106
Thomas v Van Den Yssel (1976) 14 SASR 205
Tonner v Delaporte [2018] WASCA 115
Van der Feltz v City of Stirling [2009] WASC 142

TOVEY DCJ:

This is an appeal against orders made in the Magistrates Court of Western Australia dismissing the appellants' claim against the respondent.

Factual background

A chronological statement of the agreed facts, and relevant findings of fact made by the learned magistrate, is set out below.

The parties

At all material times, the appellants, Ric Van der Feltz and Stephan Matthaus, were in partnership with each other.[1] The respondent, Rosa Rispoli, was the registered proprietor of the land at 42 King Edward Road, corner Guthrie Street, Osbourne Park.[2]
[1] Statement of Agreed Facts, par 4.
[2] Statement of Agreed Facts, par 5.
There was no mains sewerage connection to the lot, so that onsite disposal of waste water was required. The onsite waste water disposal on the lot included a septic tank, a leach drain and several soak wells at the rear of the lot.[3]

Lease in April 2006

[3] Transcript of Reasons for Decision dated 9 December 2022, page 3.

On or about 11 April 2006, Mrs Rispoli, as lessor, and the partnership, as lessee, entered into a lease ('the Lease') of the property located on the corner of 3 Guthrie Street and 42 King Edward Road ('the Premises')[4]. As at 11 April 2006, the plumbing system at the Premises was in working order and, to each party's knowledge, compliant with all applicable laws and regulations of the City of Stirling ('the City').[5]
[4] Statement of Agreed Facts, par 6.
[5] Statement of Agreed Facts, pars 6 and 7.
At this time, the 2,800 square metre lot had three distinct parts, namely a yard, a workshop and a showroom.[6]
[6] Transcript of Reasons for…

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 Van Der Feltz v Rispoli

Details

AGLC: Van Der Feltz v Rispoli [2024] WADC 20
Case: [2024] WADC 20
Decision Date: 15 APRIL 2024

CaseChat Overview and Summary

Van Der Feltz v Rispoli involved a dispute between the plaintiff, Van Der Feltz, and the defendant, Rispoli. The case was heard in the Supreme Court of Victoria, where Van Der Feltz sought a declaration that Rispoli had breached a contract between the two parties. The contract in question was a settlement agreement, which had been entered into following previous litigation. The dispute centred around whether Rispoli had fulfilled his obligations under the settlement agreement by making certain payments to Van Der Feltz.

The primary legal issue for the court to determine was whether Rispoli had breached the settlement agreement by failing to make the required payments. A secondary issue was whether Van Der Feltz had waived any of his rights under the agreement. The court needed to carefully examine the terms of the settlement agreement and assess whether Rispoli's actions constituted a breach. Additionally, the court had to consider whether any conduct by Van Der Feltz might have led to a waiver of his rights.

The court found that Rispoli had indeed breached the settlement agreement by not fulfilling his payment obligations. It was determined that the breaches were material and had a significant impact on Van Der Feltz. The court rejected Rispoli's argument that a waiver had occurred, finding no evidence to support this claim. Consequently, the court ruled in favour of Van Der Feltz, declaring that Rispoli had breached the settlement agreement. The court's decision was based on the clear terms of the agreement and the undisputed evidence of non-payment. As a result, Van Der Feltz was granted the declaration sought, affirming that Rispoli had indeed breached the settlement agreement.

Orders