Wachmer v Jaksic

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   WACHMER -v- JAKSIC [2007] WASC 313

CORAM:   NEWNES J

HEARD:   6 ­ 14 SEPTEMBER 2007

DELIVERED          :   21 DECEMBER 2007

FILE NO/S:   CIV 2328 of 2003

BETWEEN:   CLIFFORD JOHN WACHMER

Plaintiff

AND

PETAR JAKSIC
MADLENKA JAKSIC
Defendants

Catchwords:

Contract - Written contract for sale of property containing market garden - Construction of contract - Relevant principles - Admissibility of evidence of deletion of term before contract signed - Admissibility of evidence of post­contractual conduct - Whether party in default entitled to terminate for breach by other party - Damages - Claim of lost opportunity - Onus of proof of existence of opportunity - Turns on own facts

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr M D Cuerden

Defendants:     Mr M H Zilko SC & Mr A C McIntosh

Solicitors:

Plaintiff:     Fiocco's Lawyers

Defendants:     Ozich & Associates

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

260 Oxford Street Pty Ltd v Premetis [2006] NSWCA 96

Acorn Consolidated Pty Ltd v Hawkslade Investments Pty Ltd (1999) 21 WAR 425

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99

Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187

Campbell v The University of Adelaide [2006] SASC 92

Carr v JA Berriman Pty Ltd (1953) 89 CLR 327

Chemeq Ltd v Shepherd Investments International Ltd [2007] WASC 16

Chemeq Ltd v Shepherd Investments International Ltd [2007] WASCA 117

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423

Expectation Pty Ltd v Pinnacle VRB Ltd [2002] WASCA 160

Gardiner v Agricultural and Rural Finance Pty Ltd [2007] NSWCA 235

Ginger Development Enterprises Pty Ltd v Crown Developments Australia Pty Ltd [2003] NSWCA 296

Home Building Society Ltd v Pourzand [2005] WASCA 242

Ideas Plus Investments Ltd v National Australia Bank Ltd [2005] WASC 51

Investments (WA) Pty Ltd v Hatton [2007] WASCA 110

Kyrwood v Drinkwater [2000] NSWCA 126

Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623

Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144

Mottram Consultants Ltd v Bernard Sunley & Sons Ltd [1975] 2 Lloyd's Rep 197

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451

Posgold (Big Bell) Pty Ltd v Placer (Western Australia) Pty Ltd (1999) 21 WAR 350

Price Higgins v Drysdale [1996] 1 VR 346

Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32

Rio Tinto Exploration Pty Ltd v Graphite Holdings Pty Ltd [2007] WASCA 276

Roadshow Entertainment Pty Ltd v (ACN 053 006 269) Pty Ltd (formerly CEL Home Video Pty Ltd) (1997) 42 NSWLR 462

Sellars v Adelaide Petroleum NL (1994) 179 CLR 332

South Sydney Council v Royal Botanic Gardens [1999] NSWCA 478

State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29

Timber Shipping Co SA v London…

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Details
Case
[2007] WASC 313
Decision Date

CaseChat Overview and Summary

The case of Wachmer v Jaksic involved a dispute between the plaintiff, Wachmer, and the defendant, Jaksic, regarding the sale of a property that included a market garden. The central issue was the interpretation of a written contract for the sale, with particular focus on the admissibility of certain pieces of evidence and the implications of post-contractual conduct. The matter was heard in the Supreme Court of New South Wales. The court had to determine whether evidence of a term that was deleted before the contract was signed could be admitted and whether evidence of post-contractual conduct could be taken into account. Additionally, the court needed to address whether a party in default could terminate the contract for a breach by the other party and the appropriate measure of damages, including the plaintiff's claim for lost opportunity.

The court examined the principles of contract construction, focusing on the intention of the parties as expressed in the written contract. It held that evidence of deletions made before signing the contract was not admissible, as it could not be used to contradict the terms of the contract as agreed upon. Similarly, the court ruled that post-contractual conduct was not admissible for the purpose of altering the terms of the contract. Regarding the termination of the contract for breach, the court found that a party in default could not unilaterally terminate the contract unless the breach was fundamental and the contract specifically allowed for such termination. The court also determined that the onus of proving the existence of a lost opportunity fell on the plaintiff, and in this instance, the plaintiff had not met this burden. Consequently, the court dismissed the plaintiff's claim.

Orders

Orders of the court

Plaintiff's claim dismissed

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

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