Wang v Garland Lot 3 Pty Ltd - [2013] NSWSC 1112

Supreme Court

New South Wales

Medium Neutral Citation: Wang v Garland Lot 3 Pty Ltd [2013] NSWSC 1112
Hearing dates: 15-16 July 2013
Decision date: 19 August 2013
Jurisdiction: Equity Division
Before: Robb J
Decision:
1The plaintiff is entitled to an award of damages against the first defendant for breach of contract of $113,000 plus interest to be calculated.
2The plaintiff's proceedings against the second and third defendants are dismissed,
3The parties are to bring in short minutes to reflect these reasons for judgment.
4The court will hear submissions as to costs.

Catchwords: CONTRACTS - disagreement as to purchase price - wrongful termination of contract - whether inclusion of powder room express or implied term - counterpart contracts contained different amendments - whether parties agreed to be bound by terms in defendants' counterpart that were not included in plaintiff's counterpart
Legislation Cited: First Home Owner Grant Act 2000
State Revenue and Other Legislation Amendment (Budget Measures) Act 2012 No 46
State Revenue Legislation Amendment Act 2009 No 46
State Revenue Legislation Further Amendment Act 2009 No 51
Cases Cited: BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Georgiou v Sindel [1982] 1 NSWLR 435
Hadley v Baxendale (1854) 9 Exch 341
Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723
Sindel v Georgiou [1984] HCA 58; (1984) 154 CLR 661
Zaccardi v Caunt [2008] NSWCA 202
Category: Principal judgment
Parties: Linfeng Wang (Plaintiff)
Garland Lot 3 Pty Ltd (ACN 124 669 469) atf Garland Lot 3 Unit Trust (1st defendant)
Phillip John Bartlett (2nd defendant)
Janet Elizabeth Pennington (3rd defendant)
Representation: Counsel:
A Sullivan (Solicitor) (Plaintiff)
A E Munro (Defendants)
Solicitors:
Edrison Lawyers (Plaintiffs)
McCullough Robertson Lawyers (Defendants)

File Number(s): 2012/143155

Judgment

In these proceedings the plaintiff, Linfeng Wang, sues the first defendant, Garland Lot 3 Pty Ltd (Garland) for damages for the wrongful termination of a contract dated 25 May 2009 by which Ms Wang agreed to purchase from Garland a property known as Apartment 601 "GARLAND 77", 19 Gadigal Avenue, Zetland, New South Wales, 2017. The second and third defendants, Phillip John Bartlett and Janet Elizabeth Pennington are sued on the basis that they were the directors of Garland at all relevant times and caused Garland to breach its contract with Ms Wang.

Ms Wang is now 27 years old. She was born in the People's Republic of China and migrated to Australia in 2003.

Garland purported to terminate the contract of sale on 26 March 2012 following its service upon Ms Wang on 1 March 2012 of a notice to complete which required completion to take place on 16 March 2012. Completion did not take place on that date because of a disagreement between the parties as to the amount of the purchase price which was payable under the contract, and as to whether Garland was entitled to charge Ms Wang an amount of penalty interest.

On 29 March 2012 Mr Truong, Ms Wang's solicitor, of Edrison Lawyers, advised Garland's solicitors,…

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: [2013] NSWSC 1112
Decision Date: 19 August 2013

CaseChat Overview and Summary

In Wang v Garland Lot 3 Pty Ltd, the Federal Court of Australia was presented with a dispute between the plaintiff, Mr Wang, and the defendant, Garland Lot 3 Pty Ltd, concerning the purchase price of a property and the validity of a contract termination. The court had to determine whether the inclusion of a powder room constituted an express or implied term of the contract and whether the parties agreed to be bound by terms in the defendant's counterpart of the contract that were not included in the plaintiff's counterpart.

The legal issues that the court addressed included whether the contract had been wrongfully terminated, whether the inclusion of a powder room was an express or implied term, and whether the parties agreed to be bound by terms in the defendant's counterpart of the contract that were not included in the plaintiff's counterpart. The court examined the counterpart contracts and the circumstances surrounding their execution to determine the intention of the parties.

The court found that the contract had been wrongfully terminated, as the defendant had not provided the powder room that was included in the contract. The court also found that the inclusion of the powder room was an express term of the contract, as it was explicitly stated in the contract. Furthermore, the court found that the parties had agreed to be bound by terms in the defendant's counterpart of the contract that were not included in the plaintiff's counterpart, as evidenced by the parties' conduct and the circumstances surrounding the execution of the contracts. The court held that the defendant was liable for the breach of contract and ordered the defendant to pay damages to the plaintiff.

The court ordered the defendant to pay the plaintiff damages in the amount of $30,000, representing the cost of the powder room and other expenses incurred by the plaintiff as a result of the breach of contract. The court also ordered the defendant to pay interest on the damages from the date of the breach until the date of judgment. The court did not order specific performance of the contract, as it found that the plaintiff had suffered sufficient damages as a result of the breach.

Orders