Stewart v Woolnough [2000] NSWCA 7

New South Wales Court of Appeal

CITATION : Stewart v Woolnough [2000] NSWCA 7 FILE NUMBER(S) : CA 40069/99 HEARING DATE(S) : 10 February 2000 JUDGMENT DATE : 10 February 2000

PARTIES : Appellant: Alfred John Stewart and Daphne Gwendoline Stewart Respondent: G & L Woolnough Pty Ltd JUDGMENT OF : Meagher JA at 1; Beazley JA at 15; Powell JA at 16

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT 4086/96 FILE NUMBER(S) : LOWER COURT Einstein J JUDICIAL OFFICER :

COUNSEL : Appellant: P Durack Respondent:C M Simpson SOLICITORS : Appellant: Allen Allen & Hemsley Respondent: P T Flower & Sons CATCHWORDS : Contract of sale - agreement on market value of property condition precedent - valuation of property misconstrued - specific performance - no agreement if condition precedent not satisfied - no duty on parties to point out valuation had been misconstrued LEGISLATION CITED : Suitors Fund Act 1951 Real Property Act 1900 DECISION : 1. Appeal allowed; 2. The decision of Einstein J be set aside.; 3. The cross-appeal should be dismissed with costs.; 4 Respondent to pay the appellant's costs and the plaintiff to pay the defendant's costs in the court below.However, the respondent to have a certificate under the Suitors Fund Act in respect of the costs of the appeal.; 5. Judgement for possession of the property comprised in Folio Identifier 1/25/758707 ("the Property") on the Amended Cross-Claim.; 6. The appellants' have leave to issue a writ of possession of the Property for 8 weeks from this date.; 7. An order under s. 74 MA(2) of the Real Property Act 1900 that the respondent withdraw caveat number 2531310U lodged by the respondent on 14 October 1996 within 7 days of these orders.