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Wheatley v Kavanagh

Wheatley v Kavanagh

Case [2018] NSWSC 1359 6 September 2018

Contract for Sale

Termination of Contract

Compensatory Damages

Property Law

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Wheatley v Kavanagh [2018] NSWSC 1359
Hearing dates: 6 and 25 June 2018
Date of orders: 06 September 2018
Decision date: 06 September 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Judgment for the plaintiff against the first defendant in the sum of $600,000 plus interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) to the date of judgment (quantified up to and including 6 June 2018 at $55,947 and thereafter to be calculated pursuant to s 100 of the Act), plus costs.
2. Dismiss the plaintiff’s claim against the second defendant with costs.

Catchwords:
LAND LAW – Conveyancing – Contract for sale – Vendor suing purchaser to recover deposit, interest and costs following termination of contract for purchaser’s breach – Purchaser contending, inter alia, that contract was conditional upon purchaser obtaining finance – Held contract was not conditional and vendor had validly terminated the contract – Purchaser ordered to pay deposit, interest and costs
EQUITY – Trusts and trustees – Resulting trust or express trust – Whether purchaser held the benefit of the contract on trust, wholly or in part, for the purchaser’s husband – Held there was no resulting trust or express trust
Legislation Cited: Civil Procedure Act 2005 (NSW), s 100
Conveyancing Act 1919 (NSW), s 66W
Family Law Act 1975 (Cth), ss 79, 80
Trustee Act 1925 (NSW), s 59
Cases Cited: Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495
Anderson v McPherson (No 2) [2012] WASC 19
Ardestani v Doss [2018] NSWSC 1084
Arkmill Pty Ltd v Tippers & Co Pty Ltd [2006] QSC 248
Australian Securities and Investments Commission v Letten (No 17) [2011] FCA 1420; (2011) 286 ALR 346; 87 ACSR 155
Bahr v Nicolay (No 2) (1998) 164 CLR 604; [1988] HCA 16
Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060; 12 BPR 22,421
Brien v Dwyer (1978) 141 CLR 378; [1978] HCA 50 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Brown v Tavern Operator Pty Ltd [2018] NSWSC 1290
Buffrey v Buffrey [2006] NSWSC 1349; 12 BPR 23,619
Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226; [1998] HCA 4
Commonwealth v Byrnes [2018] VSCA 41; 354 ALR 789
Cook v Fountain (1672) 3 Swan 585; 36 ER 984
Dyer v Dyer (1788) 2 Cox Eq Cas 92; 30 ER 42
Fowkes v Pascoe (1875) LR 10 Ch App 343
Furlong v Wise & Young Pty Ltd [2016] NSWSC 1839
Hardoon v Belilios [1901] AC 118
Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271
J W Broomhead (Vic) Pty Ltd (in liq) v J W Broomhead Pty Ltd [1985] VR 891
Jones (Liquidator) v Matrix Partners Pty Ltd [2018] FCAFC 40

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 Wheatley v Kavanagh

Details

AGLC: Wheatley v Kavanagh [2018] NSWSC 1359
Case: [2018] NSWSC 1359
Decision Date: 06 September 2018

CaseChat Overview and Summary

In the case of Wheatley v Kavanagh, the plaintiff, Wheatley, sought to recover a deposit, interest and costs from the defendant, Kavanagh, after terminating the contract for sale of a property due to the defendant's breach. The defendant argued, among other things, that the contract was contingent on the defendant obtaining finance. The court found that the contract was not conditional and that the plaintiff had lawfully terminated the contract. The court ordered the defendant to pay the deposit, interest and costs. Additionally, the defendant contended that she held the benefit of the contract on trust, in whole or in part, for her husband. However, the court found that there was no resulting trust or express trust.

The legal issues before the court were whether the contract for sale was conditional upon the defendant obtaining finance, and whether the defendant held the benefit of the contract on trust for her husband. The court examined the terms of the contract, the circumstances surrounding the agreement, and the intentions of the parties. The court also considered the applicable principles of contract law and equity. Ultimately, the court found that the contract was not conditional and that there was no resulting trust or express trust.

The court held that the contract for sale was not conditional upon the defendant obtaining finance. The court found that the contract explicitly stated that it was not contingent upon finance being obtained and that the defendant had the ability to obtain finance at the time of the agreement. The court also noted that the defendant had not provided any evidence to support her contention that the contract was conditional. The court held that the plaintiff had lawfully terminated the contract due to the defendant's breach, and that the defendant was therefore liable for the deposit, interest and costs.

The court also held that there was no resulting trust or express trust in favour of the defendant's husband. The court found that there was no evidence to suggest that the defendant held the benefit of the contract on trust for her husband, and that the defendant had not provided any authority to support her contention. The court held that the defendant was the sole beneficiary of the contract and was therefore liable for the deposit, interest and costs. The court ordered the defendant to pay the plaintiff the deposit, interest and costs within 28 days.

Orders