Wright v Corani

Case [2006] SASC 115

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Civil)

WRIGHT & ANOR v CORANI & ANOR

Judgment of The Full Court

(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice Layton)

24 April 2006

APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - AFTER SATISFACTION OF JUDGMENT

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE INFERENCES OF FACT INVOLVED

CONVEYANCING - RELATIONSHIP OF VENDOR AND PURCHASER - MATTERS ARISING BETWEEN CONTRACT AND CONVEYANCE - DESCRIPTION, MISDESCRIPTION AND COMPENSATION FOR "ERROR OR MISDESCRIPTION" - ``ERROR OR MISDESCRIPTION'' - DEFICIENCY IN OR EXCESS OF AREA

RESTITUTION - OTHER MATTERS - RECOVERY OF MONEY PAID UNDER JUDGMENT OR ORDER

Application for leave to appeal out of time - appeal against decision of Judge of the District Court - decision which the appellants seek to challenge has already been the subject of a successful appeal to this Court - appellants were not joined as respondents in the appeal to the Full Court - appellants paid money into court following the District Court judgment - monies paid out to respondents before decision of the Full Court but after District Court judgment - Full Court did not know that the money had been paid out of Suitors Fund - whether District Court judgment still binding against appellants - whether there is a prejudice caused to parties in granting an extension of time - merits of the appeal - whether misrepresentation resulted in any loss - what was the true value of the land - effect of valuation evidence - whether evidence of underbid relevant - principle of restitution in full - Held: leave granted to appeal out of time - appeal allowed - amount paid for land at auction was the true value of the land, despite the misdescription, - reasons of previous Full Court adopted - money to be repaid to the appellants with interest.

Trade Practices Act 1974 s52, 82; Fair Trading Act 1987 s56, 84; Misrepresentation Act 1972 s7; Supreme Court Rules 1987 r3.04(d), 95.16, referred to.
The Commonwealth of Australia v McCormack (1984) 155 CLR 273; Basheer & DeConno Pty Ltd v Corani & Anor (2005) 92 SASR 468; Gallo v Dawson (1990) ALR 479, applied.
Modra v Police [2006] SASC 52; Warren v Coombes (1979) 142 CLR 531; Devries & Anor v Australian National Railways Commission & Anor (1993) 177 CLR 742; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; Fox v Percy (2003) 214 CLR 118, discussed.
Jackamarra v Krakour (1998) 195 CLR 516, considered.

WRIGHT & ANOR v CORANI & ANOR
[2006] SASC 115

Full Court: Sulan, Anderson & Layton JJ

THE COURT

Introduction

  1. This is an appeal against a…

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AGLC
Wright v Corani [2006] SASC 115
Case
[2006] SASC 115
Decision Date

CaseChat Overview and Summary

In Wright v Corani, the appellants sought leave to appeal out of time against a decision of the District Court. The appeal challenged a decision which had already been successfully appealed to the Full Court. The appellants were not joined as respondents in the appeal to the Full Court, and had paid money into court following the District Court judgment. The monies were paid out to the respondents before the decision of the Full Court, but after the District Court judgment. The Full Court was unaware that the money had been paid out of the Suitors Fund. The appellants sought to challenge whether the District Court judgment was still binding against them, and if there was any prejudice caused to the parties in granting an extension of time. They also sought to challenge the merits of the appeal, including whether any misrepresentation resulted in any loss, the true value of the land, the effect of valuation evidence, and whether evidence of underbidding was relevant. The principle of restitution in full was also considered.

The court granted leave to appeal out of time and allowed the appeal. The amount paid for the land at auction was held to be the true value of the land, despite the misdescription. The reasons of the previous Full Court were adopted, and the money was to be repaid to the appellants with interest.

The court considered that the payment of the money into the Supreme Court Trust Account and the subsequent payment out to the purchasers did not prejudice the appellants' right to appeal. The court held that the principle of restitution in full applied, and that the appellants were entitled to be repaid the money with interest. The court found that the misrepresentation did not result in any loss, and that the true value of the land was the amount paid at auction. The evidence of underbidding was held to be relevant, and the valuation evidence was considered in determining the true value of the land.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 16 February 2005, the solicitors for the vendors advised that their client would pay the money into the Supreme Court Trust Account. They indicated that once the funds were in the Supreme Court Trust Account the purchasers would be at liberty to apply (emphasis added) for the funds to be released to their client. They repeated that if the funds were released then “we would not think that our client could be seen as having acted in contempt.” That advice was followed up by a further communication, dated 8 March 2005 from the vendors’ solicitors, advising that in fact the sum of $35,733 had been paid into the Supreme Court Trust Account in satisfaction of the orders made in the District Court. The letter went on to state that:In due course, you can advise us of your additional interest and legal fees and disbursements so that we can finalise this matter.Events Between Judgment and Appeal We were informed by counsel during this appeal, that on 15 July 2005, following an ex parte application by the solicitors for the purchasers, the money was paid out of the Supreme Court by order of a Master, to the solicitors for the purchasers. That money was then disbursed from the solicitor’s trust account within a few days and sent to the purchasers. The hearing of the Full Court appeal in Basheer & DeConno Pty Ltd v Corani & Anor took place on 6 May 2005. Judgment in that matter was given on 3 August 2005. The payment out following the ex parte application therefore took place after the Full Court had heard the argument on the appeal but prior to the Full Court delivering judgment. It is uncertain what documents were before the Court, on the ex parte application, other than those contained on the court file. These documents shed little light on whether the Master knew of the nature of the ongoing correspondence between the solicitors for the purchasers and the solicitors for the vendors. At this point in time the amended notice of appeal had been filed and the vendors were therefore no longer parties to the appeal. However, the court file indicates that there was “no appearance” for the vendors, but that Mr Roder appeared for the purchasers. This indicates a certain amount of confusion as to who remained as parties when the application was made and which parties were aware that such an application was being made. In our opinion, it is unlikely that such an order would have been made if the Master had been aware of the surrounding circumstances.Request by Vendors for Repayment Following the delivery of judgment by the Full Court, the solicitors for the vendors wrote on 8 August 2005 to the solicitors for the purchasers indicating that following the judgment of the Full Court, they had instructions to apply for the refund of the monies that they had paid into the Supreme Court. They also sought interest on those monies. It is obvious that they were not aware that the monies had already been disbursed following the ex parte application. They indicated at that time that they would not apply for an order for costs in respect of the proceedings in the District Court, provided there was no opposition by the purchasers to the refund of the monies paid by them into court.

Ratio Decidendi

Legal Principle Established

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