WANNUNUP Development Nominees Pty Ltd v Chadwick

[2011] WASC 47

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WANNUNUP DEVELOPMENT NOMINEES PTY LTD -v- CHADWICK [2011] WASC 47

CORAM:   MASTER SANDERSON

HEARD:   8 FEBRUARY 2011

DELIVERED          :   25 FEBRUARY 2011

FILE NO/S:   CIV 2596 of 2010

BETWEEN:   WANNUNUP DEVELOPMENT NOMINEES PTY LTD as Trustee for the WANNUNUP DEVELOPMENT UNIT TRUST 

Plaintiff

AND

RALPH LEONARD CHADWICK
SUZANNA DALEY
Defendants

Catchwords:

Summary judgment - Application to seek specific performance of contract - Turns on own facts

Legislation:

Nil

Result:

Application refused

Category:    B

Representation:

Counsel:

Plaintiff:     Mr T O Coyle

Defendants:     Mr K Savas

Solicitors:

Plaintiff:     Lavan Legal

Defendants:     Corser & Corser

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

Nil

1. MASTER SANDERSON:  This was the plaintiff's application for summary judgment.  The facts as set out in the plaintiff's amended statement of claim are not seriously in dispute.  On 19 February 2007 the defendants agreed to purchase from the plaintiff a unit in the Oceanique Luxury Apartments development just outside Mandurah.  The purchase was 'off the plan'.  That is to say the unit was planned but had not been built.  The purchase price for the unit was $2 million.  The plaintiff undertook construction of the unit and when it was duly completed it called upon the defendants to settle the purchase.  They have refused to do so.  The plaintiff now seeks specific performance of the contract of sale. 

2. The defendants raise two defences in answer to the plaintiff's claim.  First it is said the plaintiff's agent represented at the time the contract was signed the value of the unit was $2,400,000.  The defendants say that was not the value and the position was misrepresented to them.  They allege there was misleading and deceptive conduct on behalf of the plaintiff and this justifies their refusal to settle.

3. The difficulty with this argument is there is no evidence to support the defendants' claim the property was not worth $2,400,000 at the time they entered into the contract.  Appearing as annexure SD5 to the affidavit of the second‑named defendant sworn 24 November 2010 is a valuation of the relevant apartment.  That values the apartment as at June 2010, over three years after the contract was entered into.  It is no value to the defendants for the case they are seeking to run.  Without any evidence to support the defendants' claim this alleged defence can be put to one side.

4. The second argument put by the defendants is the contract when signed was supposed to be subject to finance.  The contract was drawn by the plaintiff's agent and is unconditional.  The defendants say they did not notice this fact when they signed the contract and had they realised there was no subject to finance provision they would not have entered into the agreement.

5. Counsel for the plaintiff criticised the evidence led by the defendants in support of this allegation.  It is the case the evidence is thin and not presented in a form which complies strictly with the rules of evidence.  But the fact remained the defendants on oath have said they believed the purchase contract was subject to finance.  When they signed it they did not realise there was no such provision in the agreement.  Were the evidence at trial to show this occurred as a result of the plaintiff's agent's action, the defendants may be entitled to avoid the contract.  In my view, this aspect of the defendants' defence is arguable and is reason not to enter judgment.

6. Accordingly, the application for summary judgment will be dismissed. I will hear the parties as to costs.