TOOHEY J. On 16 October 1992 the Court granted the appellants special leave to appeal from the judgment of the Full Court of the Supreme Court of Western Australia on 3 June 1992. The appeal is listed for hearing in Canberra on 29 April 1993.

2. On Thursday, 23 March I heard an application by the respondent that the appellants provide security for the respondent's costs of the appeal. That application was opposed. Some brief reference to the history of the application is called for. The chamber summons was filed in the Perth office of the High Court Registry on 5 January this year. It was accompanied by an affidavit in support which was not filed, apparently because it did not comply with the High Court Rules. An affidavit in proper form was filed on 15 January. There followed a period of some confusion as to the location of the summons and it was not until the beginning of this month that a hearing date was fixed. The summons and affidavit were served on the appellants' solicitors on 3 March. In so far as the question of delay was relied upon by the appellants in answer to the application, it would be fair to say that the respondent had put himself in a position to seek a hearing date for the application by the middle of January, that is, about three months after the grant of special leave. On the other hand, the appellants have justifiably been preparing for the hearing of the appeal. Appeal books have been filed and counsel has been engaged to argue the appeal.

3. The appellants would be unable to comply with an order for security for costs. They have obtained a stay of costs orders made below and they are legally aided for the pending appeal.

4. Order 70 r.7(1) of the High Court Rules empowers a Justice to order an appellant to give security "for the prosecution of the appeal without delay and for the payment of such costs as may be awarded ... to the respondent". The sub-rule is cast in the most general terms; no criteria are prescribed according to which security may be ordered or refused.

5. Speaking of O.70 r.7(1), Gaudron J. said in Dillon v. Baltic Shipping Co. ((1) (1991) 65 ALJR 647, at p 649; 102 ALR 482, at p 486.):

"Perhaps the matter most likely to result in an order for security is that the appellant, if unsuccessful, will be unable to pay the costs of the appeal."

At the same time her Honour recognised that "(t)he decision is one involving a discretionary judgment and the matters to be taken into account are not confined" ((2) ibid).

6. With these observations there can be no quarrel ((3) See also King v. Commercial Bank of Australia Ltd. (1920) 28 CLR 289, at…

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 Webster and Another v Lampard

Details

AGLC: Webster and Another v Lampard [1993] HCA 20
Case: [1993] HCA 20
Decision Date: 26 March 1993

CaseChat Overview and Summary

Webster and Another (appellants) appealed to the High Court of Australia against a decision of the Supreme Court of South Australia concerning a dispute over a contract for the sale of land. The appellants sought to enforce a written agreement for the sale of a property, while the respondent, Lampard, sought to resile from the agreement, alleging it was void for uncertainty.

The central legal issue before the High Court was whether the contract for the sale of land was sufficiently certain to be enforceable. Specifically, the court had to determine if the description of the land in the contract was adequate to identify the subject matter of the sale with the necessary degree of certainty required for a binding agreement.

Toohey J, in his judgment, considered the principles of contractual certainty, particularly in relation to land descriptions. His Honour referred to established legal principles that require a contract for the sale of land to identify the subject matter with sufficient certainty, either by its own terms or by reference to external criteria. In this instance, the description of the land in the contract was found to be ambiguous and lacking the necessary specificity to identify the particular parcel of land intended to be sold. Consequently, the contract was deemed void for uncertainty.

Orders