CARVER v JOYCE and ANOR [1990] NSWCA 37

CARVER v JOYCE and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP, MAHONEY and CLARKE JJA 6th November 1990, 6 November 1990

[1990] NSWCA 37

Appeal from District Court — Application to adduce fresh evidence refused — Appeal not pressed — No question of principle.

Mahoney JA This appeal comes before the Court in relation to a judgment given by his Honour Judge Moore in the District Court on 28 October 1986. In order to understand the nature of the issue now before the Court and the circumstances in which it is to be considered it is necessary to refer briefly to the circumstances leading to the judgment and to what has happened since.

The parties were parties to a contract for the sale of land dated 23 January 1982. The contract made provision in Special Condition 17 for the vendor "at no cost to the purchaser to take all necessary steps to have electricity brought on to the subdivision"'. It is not in contest, at least not now in contest, that the vendor did not perform that obligation. He did not perform it prior to the completion of the contract by transfer on 2 July 1982.

Proceedings were brought in the District Court by a statement of claim dated 1 May 1984. The argument before the Court on the hearing of the plaintiffs/purchasers' claim against the defendant/vendor was that the obligation under Special Condition 17 of the contract had merged upon the completion of the contract and that therefore the defendant was not obliged to carry out the obligation set forth in Special Condition 17.

The learned judge held against the defendant in that regard and then proceeded to assess damages. In dealing with the quantum his Honour said:

"As to quantum, the defendant has not sought to dispute the evidence brought by the plaintiff as to damages and Mr Khan has frankly conceded that as he did not bring such evidence, then there was no submission he could make about those figures. In any event, it seems to me that the figures are sworn to by Mr Wallace and Mr Shulkins, and are on the basis of their evidence reasonable figures, and in the case of Mr Wallace in particular, I accept his evidence that the figure which he put forward, although only an estimate, is a conservative figure."