SPEERS v BRYANT [1990] NSWCA 197

SPEERS v BRYANT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY (1) P, MEAGHER (2) AND HANDLEY (1) JJA 29 August 1990, 28 September 1990

[1990] NSWCA 197

CONTRACT — sale of land — novation — whether company had assumed rights and obligations of individual purchasers under a contract — special conditions of contract — correspondence between solicitors — failure of company to execute contract in place of individual purchasers — held: (Meagher JA; Kirby P and Handley JA concurring)(1) There was no evidence of novation of this contract for sale of land. Allen vy Carbone (1975) 132 CLR 528 applied; (2) The argument that there was a common intention to abandon the contract, which had not been advanced at trial, was not open on the appeal and was in any case not supported by the evidence.

Appeal dismissed with costs.

Kirby P and Handley JJA We agree in the order proposed by Meagher JA and with those parts of his Honour's reasons for judgment which deal with the legal and factual issues involved in this appeal.

Meagher JA This is an appeal from a judgment of Conomos DCJ, who awarded damages of $21,665.00 to be paid by the appellants to the respondents. The appellants were purchasers of land from the respondents, and his Honour held that they were defaulting purchasers.

The property was Lot 3, Plan No. 627556, being the whole of the land in Certificate of Title Vol. 14934 Folio 196 and known as Lot 3 Bangalow Road, Byron Bay. The purchase price was $76,250.00. The purchasers were described as the appellants, Mr and Mrs Speers "or nominee". The parties' contracts were exchanged on 10 December, 1985.

It is common ground that the purchasers did not complete the contract. Their sole defence is that before the time for completion arrived the contract was novated, as a result of which a company called Ocean Crest Property Development Pty Ltd assumed the rights and obligations of the purchasers under the contract.