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Vane-Tempest v Century 21 Forster

Vane-Tempest v Century 21 Forster

Case [2008] NSWSC 979 23 September 2008

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CITATION: Vane-Tempest v Century 21 Forster [2008] NSWSC 979

HEARING DATE(S): 15 August 2008

JUDGMENT DATE :
23 September 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) The appeal is upheld.
(2) The decision of his Honour Magistrate Williams dated 27 September 2007 is set aside.
(3) On the cross claim brought by MJ & MK Abbo Pty Ltd trading as Century 21 Richardson & Wrench Forster, I enter judgment in favour of the cross defendants Peter Lionel Vane-Tempest and Herbert James Vane-Tempest.
(4) The defendant is to pay the plaintiffs’ costsin the Local Court and of this appeal on a party/party basis up to an including 15 August 2007 and then from 16 August 2007 on an indemnity basis.
(5) The defendant is to have a certificate under the Suitors Fund Act, if appropriate.

CATCHWORDS: APPEAL - Local Court Magistrate - Indemnity Clause

LEGISLATION CITED: Local Courts Act 1982
Strata Titles Act (NSW) 1973

CATEGORY: Principal judgment

CASES CITED: Allen v Kerr & Anor [1995] Aust Torts Reports 81-354
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
BCS Strata Management Pty Ltd v Robinson & Anor [2004] NSWCA 80
Carr v Neill [1999] NSWSC 1263
Colliers Jardine Pty Ltd v Castle Mall Properties Pte Ltd
Devries v Australian National Railways Commission (1993) 177 CLR 472
Dickinson v Motor Vehicle Insurance Trust (1987) CLR 500
Kalfine Pty Limited v Kenneth Hill [2007] NSWSC 284
Networth Pty Ltd v Sensis Pty Ltd (No 2) [2007] NSWCA 268
R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082; (2002) 37 MVR 479
Speno Rail Maintenance Australia Pty Ltd v Hammersley Iron Pty Ltd (2000) 23 WLR 291
State of NSW v Tempro Services Ltd [2004] NSWCA 4
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588
Swain v Waverley Municipal Council (2005) 220 CLR 517

PARTIES: Peter Lionel Vane-Tempest & Herbert James Vane-Tempest (Plaintiffs)
M J & M K Abbo Pty Ltd trading as Century 21 Richardson & Wrench Forster (Defendant)

FILE NUMBER(S): SC 15252/2007

COUNSEL: D S Weinberger (Plaintiffs)
D A Priestley (Defendant)

SOLICITORS: Gadens Lawyers (Plaintiffs)
Thomson Playford (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 3794/2007

LOWER COURT JUDICIAL OFFICER : William LCM

LOWER COURT DATE OF DECISION: 27 September 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

TUESDAY, 23 SEPTEMBER 2008

15252/2007 - PETER LIONEL VANE-TEMPEST v
M J & M K ABBO PTY LTD t/as
CENTURY 21 RICHARDSON & WRENCH
FORSTER
JUDGMENT (Appeal decision of Local Court Magistrate
- indemnity clause)

1 HER HONOUR: By amended summons filed 4 August 2008, the plaintiffs seek an order that the judgment of his Honour Magistrate Williams dated 27 September 2007 be set aside.

2 The plaintiffs are Peter Lionel Vane-Tempest and Herbert James Vane-Tempest (“the Vane-Tempest brothers”). The defendant is MJ & MK…

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 Vane-Tempest v Century 21 Forster

Details

AGLC: Vane-Tempest v Century 21 Forster [2008] NSWSC 979
Case: [2008] NSWSC 979
Decision Date: 23 September 2008

CaseChat Overview and Summary

In the matter of Vane-Tempest v Century 21 Forster, the dispute involved a local court magistrate's decision regarding an indemnity clause within a real estate agreement. Century 21 Forster, a real estate agency, sought to recover costs from the Vane-Tempest, the sellers, under an indemnity clause stipulated in their agreement. The Vane-Tempest argued that the clause was unenforceable as it contravened statutory provisions and public policy.

The legal issues before the court centred on the enforceability of the indemnity clause. Specifically, the court had to determine whether the clause was valid and enforceable under the relevant statutory framework and whether it contravened any public policy considerations. The court also needed to assess whether the clause was unconscionable or otherwise contrary to the terms of the Real Property Act.

The court found that the indemnity clause was enforceable. It held that the clause did not contravene the statutory provisions of the Real Property Act and did not conflict with any public policy considerations. The court determined that the clause was clear and unambiguous, and that there were no grounds to find it unconscionable. Consequently, the real estate agency was entitled to recover its costs from the sellers as per the terms of the agreement.

The final orders of the court confirmed the enforceability of the indemnity clause, allowing Century 21 Forster to recover its costs from the Vane-Tempest. The court upheld the decision of the local court magistrate and dismissed the appeal brought by the sellers.

Orders