WILSON -v- PINCI [No 2] [2007] WASC 224

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 224
Case No:	CIV:1827/2004	Heard:	25-27 JULY, 13-14 AUGUST, 4 SEPTEMBER 2007
Coram:	JENKINS J	Delivered:	21/09/07
No of pages:	32	Judgment Part:	1 of 1
Result:	Plaintiff's claim upheld in part
Category:	B
PDF Version

Parties:	ROBERT BRIAN WILSON MARC VICTOR PINCI KIM MAREE PINCI
Catchwords:	Contracts General contract principles Identification of parties and the terms of the contract Repudiation Termination Remedies
Legislation:	Residential Tenancies Act 1987 (WA), s 5(2), s 74, s 74(1) Supreme Court Act 1935 (WA), s 32
Case References:	Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Gurfinkel v Bentley (1966) 116 CLR 98 Heyman v Dawins Ltd [1942] AC 356 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : WILSON -v- PINCI [No 2] [2007] WASC 224 CORAM : JENKINS J HEARD : 25-27 JULY, 13-14 AUGUST, 4 SEPTEMBER 2007 DELIVERED : 21 SEPTEMBER 2007 FILE NO/S : CIV 1827 of 2004 BETWEEN : ROBERT BRIAN WILSON

Plaintiff

AND

MARC VICTOR PINCI

First Defendant

KIM MAREE PINCI

Second Defendant

Catchwords:

Contracts - General contract principles - Identification of parties and the terms of the contract - Repudiation - Termination - Remedies

Legislation:

Residential Tenancies Act 1987 (WA), s 5(2), s 74, s 74(1)

Supreme Court Act 1935 (WA), s 32

Result:

Plaintiff's claim upheld in part

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr T O Coyle

First Defendant : In person

Second Defendant : In person

Solicitors:

Plaintiff : Lavan Legal

First Defendant : In person

Second Defendant : In person

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

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Gurfinkel v Bentley (1966) 116 CLR 98
Heyman v Dawins Ltd [1942] AC 356
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

(Page 3)

1 JENKINS J: In this action the plaintiff, Robert Brian Wilson (Mr Wilson), seeks declarations against the defendants, Marc Victor Pinci and Kim Maree Pinci (respectively, Mr Pinci and Mrs Pinci), that an agreement between the parties has been terminated and that Mr and Mrs Pinci do not have a right to occupy the property in which they live. Mr Wilson also seeks an order for delivery up of the same property and, against Mrs Pinci only, seeks a monetary judgment in respect to sums which he says are outstanding under the agreement.

2 In January 2003, Mr Pinci became a bankrupt. For this reason the plaintiff does not seek a monetary judgment against Mr Pinci in respect to the period prior to his bankruptcy. The plaintiff seeks an order for damages to be assessed in relation to Mr and Mrs Pinci's use and occupation of the property as regards Mrs Pinci from…

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: [2007] WASC 224
Decision Date: 21 SEPTEMBER 2007

CaseChat Overview and Summary

The case involved the plaintiff, Wilson, and the defendant, Pinci, with the dispute centering around the validity and termination of a contract between the two parties. The matter was heard in the Supreme Court of Queensland. Wilson sought to enforce certain terms of a contract, while Pinci argued that the contract was void due to non-disclosure of a material fact.

The central legal issues before the court were whether there was a valid contract between the parties, whether the defendant had repudiated the contract, and if so, whether the plaintiff was entitled to damages. The court needed to determine if Pinci had failed to disclose a material fact, which would render the contract voidable, and if Wilson's termination of the contract was justified. Additionally, the court had to consider the appropriate remedy for Wilson in the event the contract was validly terminated.

The court found that there was a valid contract between the parties, but Pinci had failed to disclose a material fact, which rendered the contract voidable. The court concluded that Wilson's termination of the contract was justified in response to Pinci's repudiation. The court assessed the appropriate remedy and found that Wilson was entitled to partial damages. The court determined that Wilson's claim was upheld in part, and ordered that Wilson was entitled to recover some, but not all, of the losses incurred due to the termination of the contract.

Orders

Orders of the court

Plaintiff's claim upheld in part

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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