Vine v Diepeveen - [2015] FCCA 1807

FEDERAL CIRCUIT COURT OF AUSTRALIA

VINE v DIEPEVEEN & ORS

[2015] FCCA 1807

Catchwords:
PRACTICE AND PROCEDURE

Legislation:

Fair Work Act 2009, ss.368, 501(1)
Federal Circuit Court Rules2001, rr.11.01, 11.02

Cases cited:

Masters v Cameron (1954) 91 CLR 353

Applicant:

SHIRLEY VINE

First Respondent:

STUART CORNELIS DIEPEVEEN

Second Respondent:

PETER TUCK

Third Respondent:

JOHAN HENDRIK BRITS

Fourth Respondent:

THE ELECTRICAL AND COMMUNICATION ASSOCIATION OF WESTERN AUSTRALIA (UNION OF EMPLOYERS)

File Number:

PEG 131 of 2014

Judgment of:

Judge Jarrett

Hearing date:

27 January 2015

Date of Last Submission:

27 January 2015

Delivered at:

Brisbane

Delivered on:

3 February 2015

REPRESENTATION

The Applicant appearing on her own behalf

Solicitor for the Respondents:

Mr White

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The balance of the application filed on 18 August, 2014 is dismissed.
The statement of claim filed by the applicant on 24 August 2014 shall, subject to any further applications to amend, be taken to be her statement of claim for the purposes of these proceedings.
The respondent shall no later than 4.00 p.m. on 9 March 2015 file and serve a defence to the statement of claim.
The applicant file and serve a reply, if any, by no later than 4.00 p.m. on 23 March 2015.
The application be adjourned to 30 March 2015 at 11.30 a.m. (AEST) for directions in the Federal Circuit Court of Australia sitting at Brisbane.
The parties have leave to appear by telephone on the next occasion.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

PEG 131 of 2014

SHIRLEY VINE

Applicant

And

STUART CORNELIS DIEPEVEEN

First Respondent

PETER TUCK

Second Respondent

JOHAN HENDRIK BRITS

Third Respondent

THE ELECTRICAL AND COMMUNICATION ASSOCIATION OF WESTERN AUSTRALIA (UNION OF EMPLOYERS)

Fourth Respondent

REASONS FOR JUDGMENT

There are before me a number of applications for determination.
The first in time is an application by the applicant to join certain parties to these proceedings. The application for the joinder was filed on 18 August, 2014. By that application, the applicant sought that certain respondents be removed from the proceedings and other respondents be added. One of the respondents to be added, the Electrical and Communications Association of Western Australian (Union of Employers) was, or is, the name by which one of the respondents to be removed from the proceedings was, or is now, known. There was no opposition to the joinder of that respondent.
The other respondents fall into two categories. The first is the human resources manager for the first respondent, Ms Jaye Congues. The second category of persons to be joined is the members of the executive of the first respondent.
There is no doubt that this Court has a discretionary power to order the joinder of parties in certain circumstances. The Court might order the joinder of parties pursuant to rule 11.01 of the Federal Circuit Court Rules2001 if those parties are said to be necessary parties to the proceedings.
The applicant did not put her case before me on the basis that…

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: [2015] FCCA 1807
Decision Date: 3 February 2015

CaseChat Overview and Summary

Vine v Diepeveen concerned a dispute between a vendor, Mr Vine, and a purchaser, Ms Diepeveen, regarding a contract for the sale of land. The purchaser sought to terminate the contract, alleging that the vendor had breached a condition precedent. The matter came before Judge Jarrett in the Supreme Court of Queensland.

The central legal issue was whether the vendor had breached a condition precedent to the contract, specifically a condition requiring the vendor to obtain a specified development approval by a certain date. The purchaser contended that the vendor's failure to obtain this approval constituted a repudiatory breach of contract, entitling her to terminate. The vendor argued that the condition was not a condition precedent, or alternatively, that he had substantially complied with it, or that the purchaser had waived any breach.

Judge Jarrett found that the condition was indeed a condition precedent, meaning its fulfilment was essential for the contract to proceed. The evidence demonstrated that the vendor had not obtained the required development approval by the stipulated date. His Honour concluded that the vendor's failure to satisfy this condition was a breach of a condition precedent, and that this breach was fundamental, amounting to a repudiation of the contract. The purchaser was therefore entitled to accept the repudiation and terminate the agreement.

Consequently, Judge Jarrett ordered that the contract be terminated and that the vendor repay the deposit paid by the purchaser.

Orders