Wilson v Dartanyon Pty Ltd - [2009] NSWCA 377

New South Wales

Court of Appeal

CITATION: Wilson & Anor v Dartanyon Pty Ltd [2009] NSWCA 377

HEARING DATE(S): 11 November 2009

JUDGMENT DATE:
25 November 2009

JUDGMENT OF: Tobias JA at 1; Young JA at 72; Rein J at 73

DECISION: (a) Direct the parties within 14 days to file with the Court short minutes of order to give effect to these reasons for judgment and reflecting:
(i) the amount of the judgment to which the respondent is entitled against each appellant;
(ii) the amount of interest payable on that judgment up to and including 3 April 2009 (being the date of the orders of Delaney DCJ);
(iii) the terms, if agreement can be reached, of the orders for costs of the trial if they are to differ from those made by his Honour.
(b) In the event that the parties cannot agree on (a)(iii) above, they are directed to file submissions on the question of indemnity costs within the said period of 14 days.

CATCHWORDS: CONTRACTS – Agreement for sale of land and construction of house – Whether second appellant executed agreement – Whether terms of agreement and accompanying 'Annexure A' required second appellant to repay respondent 'vendor finance' loan upon sale of property – Whether first appellant executed guarantee of loan – Whether guarantee, if executed, extended to 'vendor finance' loan – Agreement unable to be produced at hearing – Findings by primary judge as to terms of agreement based primarily upon credit findings - APPEAL – Admission of further evidence – Where evidence not available at hearing – Building contract anonymously received by appellants after hearing – Whether special grounds existed to admit contract under s 75A(8) Supreme Court Act 1970 – Whether there was a real possibility that the primary judge would have reached a different decision had the building contract been admitted at hearing

LEGISLATION CITED: Supreme Court Act 1970

CATEGORY: Principal judgment

CASES CITED: Atkins v National Australia Bank (1994) 34 NSWLR 155
Commonwealth Bank of Australia v Quade [1991] HCA 61; (1991) 178 CLR 134
Thomas v HP Mercantile Pty Ltd (2008) NSWCA 308

PARTIES: Ian Wilson
Matthew Wilson
Dartanyon Pty Ltd

FILE NUMBER(S): CA 40187/09

COUNSEL: A: G P McNally SC
R: B De Buse

SOLICITORS: A: Dignan & Hanrahan, Campbelltown
R: Marsdens Law Group, Campbelltown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 20/2007

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

LOWER COURT DATE OF DECISION: 20 March 2007

CA 40187/09

TOBIAS JA
YOUNG JA
REIN J
Wednesday 25 November 2009

IAN WILSON & Anor v DARTANYON PTY LIMITED

Judgment

1 TOBIAS JA: In September 2004 Dartanyon Pty Limited (the respondent) was a real estate developer carrying on the business of buying allotments of land, erecting houses thereon and then selling the house and land as a package.

2 Mr Ian Wilson (the first appellant) was an employee of the respondent, whereas Matthew Wilson (the second appellant) was his son (together the appellants).

3 Negotiations took place…

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.

Keep reading for free

Create a free CaseChat account to read Wilson v Dartanyon Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWCA 377
Decision Date: 25 November 2009

CaseChat Overview and Summary

The appeal concerned a dispute arising from an agreement for the sale of land and the construction of a house. The respondent, Dartanyon Pty Ltd, was the vendor, while the appellants, Mr. and Mrs. Wilson, were the purchasers. The central issue was whether the Wilsons were obligated to repay a "vendor finance" loan provided by Dartanyon upon the sale of the property, and whether Mrs. Wilson had executed a guarantee for this loan. The original agreement could not be produced at the hearing before the primary judge.

The court was required to determine whether Mrs. Wilson had executed the agreement and the accompanying Annexure A, which allegedly contained the terms regarding the repayment of the vendor finance loan. Furthermore, the court had to ascertain whether Mr. Wilson had executed a guarantee, and if so, whether that guarantee extended to the vendor finance loan. A significant question on appeal was whether further evidence, specifically the building contract received anonymously by the appellants after the hearing, should be admitted under section 75A(8) of the *Supreme Court Act 1970*, and if its admission would likely have led to a different decision by the primary judge.

The court's reasoning focused on the primary judge's findings of credit regarding the execution of the documents and the terms of the agreement, given the absence of the original contract. The appeal court considered the criteria for admitting fresh evidence on appeal, particularly whether the newly produced contract was unavailable at the original hearing and whether it presented a real possibility of altering the outcome. The court ultimately made orders directing the parties to file short minutes of order to give effect to its reasons for judgment, specifying the amounts of judgment and interest payable by each appellant, and addressing the costs of the trial.

Orders

Orders of the court

(a) Direct the parties within 14 days to file with the Court short minutes of order to give effect to these reasons for judgment and reflecting:

(i) the amount of the judgment to which the respondent is entitled against each appellant;

(ii) the amount of interest payable on that judgment up to and including 3 April 2009 (being the date of the orders of Delaney DCJ);

(iii) the terms, if agreement can be reached, of the orders for costs of the trial if they are to differ from those made by his Honour.

(b) In the event that the parties cannot agree on (a)(iii) above, they are directed to file submissions on the question of indemnity costs within the said period of 14 days.

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

Full text does not contain this section.

CITATION:	Wilson & Anor v Dartanyon Pty Ltd [2009] NSWCA 377
HEARING DATE(S):	11 November 2009
JUDGMENT DATE:	25 November 2009
JUDGMENT OF:	Tobias JA at 1; Young JA at 72; Rein J at 73
DECISION:	(a) Direct the parties within 14 days to file with the Court short minutes of order to give effect to these reasons for judgment and reflecting: (i) the amount of the judgment to which the respondent is entitled against each appellant; (ii) the amount of interest payable on that judgment up to and including 3 April 2009 (being the date of the orders of Delaney DCJ); (iii) the terms, if agreement can be reached, of the orders for costs of the trial if they are to differ from those made by his Honour. (b) In the event that the parties cannot agree on (a)(iii) above, they are directed to file submissions on the question of indemnity costs within the said period of 14 days.
CATCHWORDS:	CONTRACTS – Agreement for sale of land and construction of house – Whether second appellant executed agreement – Whether terms of agreement and accompanying 'Annexure A' required second appellant to repay respondent 'vendor finance' loan upon sale of property – Whether first appellant executed guarantee of loan – Whether guarantee, if executed, extended to 'vendor finance' loan – Agreement unable to be produced at hearing – Findings by primary judge as to terms of agreement based primarily upon credit findings - APPEAL – Admission of further evidence – Where evidence not available at hearing – Building contract anonymously received by appellants after hearing – Whether special grounds existed to admit contract under s 75A(8) Supreme Court Act 1970 – Whether there was a real possibility that the primary judge would have reached a different decision had the building contract been admitted at hearing
LEGISLATION CITED:	Supreme Court Act 1970
CATEGORY:	Principal judgment
CASES CITED:	Atkins v National Australia Bank (1994) 34 NSWLR 155 Commonwealth Bank of Australia v Quade [1991] HCA 61; (1991) 178 CLR 134 Thomas v HP Mercantile Pty Ltd (2008) NSWCA 308
PARTIES:	Ian Wilson Matthew Wilson Dartanyon Pty Ltd
FILE NUMBER(S):	CA 40187/09
COUNSEL:	A: G P McNally SC R: B De Buse
SOLICITORS:	A: Dignan & Hanrahan, Campbelltown R: Marsdens Law Group, Campbelltown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 20/2007
LOWER COURT JUDICIAL OFFICER:	Delaney DCJ
LOWER COURT DATE OF DECISION:	20 March 2007