Zaccardi v Caunt [2008] NSWCA 202

New South Wales Court of Appeal

CITATION: Zaccardi v Caunt [2008] NSWCA 202

HEARING DATE(S): 18 July 2008

JUDGMENT DATE: 25 August 2008

JUDGMENT OF: Allsop P at 1; Campbell JA at 6; Barr J at 123

(1) Appeal upheld, with costs. DECISION: (2) Set aside the judgment in the court below insofar as it was against the Appellant. In lieu thereof, judgment for the Appellant. (3) First and Second Respondents to reimburse the Appellant for out-of-pocket expenses actually and reasonably incurred by him in the proceedings in the court below.

CATCHWORDS: CONTRACTS – Vendor and purchaser – whether contract for sale of land – agreement in principle – exchange of counterparts in non-identical terms – whether unenforceable oral agreement – whether vendors' solicitor had authority to exchange on vendors' behalf – intention of parties – whether parts differed in material respect – where counterpart signed by purchasers amended clause containing purchasers' warranty – where vendors may have to run and win legal argument to have benefit of warranty – whether course of negotiation of contract admissible aid to construction – whether comparison of counterparts only way of identifying terms agreed on – whether availability of rectification a pre-requisite before contract can be found to have been entered where materially different parts exchanged – where rectification unavailable in District Court – s 134 District Court Act 1973 – whether counterpart signed by purchasers was agreement in writing or memorandum or note of that agreement within s 54A Conveyancing Act - REAL PROPERTY – sale of land – Notice to Complete – whether contract validly terminated by process started by service of Notice – whether vendors discharged onus of proof – time at which service of Notice deemed to be effected when served by post – reasonable time to complete – whether 10 days sufficient – where contract contains additional clause deeming 14 days to be reasonable time – general principles – s 25(7) Judicature Act 1873 (Eng) – s 13 Conveyancing Act – application to District Court proceedings – circumstances in which breach of term in contract as to time gives rise to right to terminate – where pre 1873 equity court would not have intervened to grant relief concerning termination - EVIDENCE – witnesses – variant of Jones v Dunkel principle – where party calls witness who could have given direct evidence on particular topic refrains from asking questions that would elicit information on that topic – permissible inferences – admissions – whether judge is justified in treating statements made by a litigant-in-person from the Bar table as of evidentiary force - APPEALS – whether open on appeal for person who was defendant in court below to submit that evidence did not make out essential element of cause of action sued on - COSTS – where successful party in appeal appeared in person in court below – entitlement to indemnity for out of pocket expenses