Park v Brothers [2005] HCA 73

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, HAYNE, CALLINAN AND HEYDON JJ

LINDSAY GORDON PARK & ANOR APPELLANTS

AND

CLIVE ROY BROTHERS RESPONDENT

Park v Brothers [2005] HCA 73

6 December 2005

S226/2005

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales dated 23 July 2004 and, in their place, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

I M Barker QC with D H Murr SC for the appellants (instructed by Holman Webb)

T E F Hughes QC with T D F Hughes for the respondent (instructed by Lumleys Solicitors)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Park v Brothers

Vendor and purchaser – Sale of land – Purchasers entitled to possession prior to completion on conditions including requirement of vendor's approval – Vendor wrongly purported to rescind contract – Vendor denied purchasers access to land – Purchasers sued for damages for breach of access provision – Whether necessary for purchasers to seek vendor's approval notwithstanding purported rescission – Whether vendor's conduct waived condition of approval.

Contract – Construction of contract – Purchasers to have access to land prior to completion to farm in areas approved by vendor – Whether vendor required to act reasonably in granting or withholding approval.

Contract – Construction of contract – Implied duty to co-operate – Limits of operation of implication.

Practice and procedure – Appeal – Whether it is open to an appellate court to allow an appeal on a new ground that was not raised at trial and that, if raised, could have been the subject of evidence.

1. GLEESON CJ, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ. On 25 September 2000, the respondent agreed to sell, and the appellants agreed to buy, a rural property of a little less than 25,000 acres, located about 40 km west of Hay. The purchase price was $3,350,000. Although the contract provided for completion on 7 December 2000, disputes and litigation intervened. In the event, completion took place on 24 March 2001. The pre-settlement litigation involved proceedings brought by the appellants in the Equity Division of the Supreme Court of New South Wales, seeking a declaration that a purported rescission of the contract by the respondent was ineffective and, if necessary, an order for specific performance. On 27 February 2001, Young J held in favour of the appellants, but it was unnecessary to make a formal decree for specific performance[1]. Following completion of the contract, the proceedings remained on foot, to enable the appellants to pursue claims for damages. 2. The proceedings next came before Campbell J, who dealt with various claims by the appellants for damages arising out of certain pre-contractual representations said to have been made in contravention of the Fair Trading Act 1987 (NSW) ("the Fair Trading Act"), and for damages for breach of contract. On 7 October 2003, Campbell J gave judgment in favour of the appellants, upholding most of their claims, and awarding damages in the total amount of $1,512,052 plus interest[2]. 3. The respondent appealed to the New South Wales Court of Appeal (Giles JA, Ipp JA, Wood CJ at CL). The Court of Appeal upheld the appeal on one ground relating to part of the claim for damages for breach of contract, and reduced the amount of the judgment to $464,641 plus interest[3]. The present appeal is concerned only with the issue that gave rise to that reduction in damages. We are not concerned with the damages awarded for breaches of the Fair Trading Act, and we are concerned with part only (albeit the larger part) of the damages originally awarded for breach of contract. In order to explain that issue, it is necessary to say something more about the contract, and the litigious history.