Mr and Mrs B S Blazely v Mr and Mrs S v Whiley [1995] TASSC 26;

Mr and Mrs B S Blazely v Mr and Mrs S v Whiley [1995] TASSC 26; - TASSC 1995 case summary — Zoe

[34]

28. The plaintiffs' claim is four fold. They wish to evict the defendants from both No16 and No16A, they seek to recover arrears of rent, and they claim a balance of $600 allegedly overdue in respect of a debt incurred by the male defendant purchasing $1,000 worth of equipment from the plaintiffs. This last mentioned aspect of the proceedings is a fairly minor part of the overall dispute between the parties and it may be dealt with quite shortly. The male defendant acknowledged that he was offered the equipment in question by the male plaintiff who had left it behind at Deloraine when he moved to Queensland. The price asked was $1,000 and details of the proposition are contained in a letter written to Mr Whiley by the male plaintiff in February 1987 (Exhibit P12). The plaintiff left it to the defendant to advise him whether or not he wanted to purchase the items. Subsequently the defendant made a payment of $400 which the male plaintiff appropriated as part payment. The only evidence that this payment was intended by the defendants as payment for the relevant items of equipment is to be found in the concluding paragraphs of the male plaintiff's letter of May 1987 (Exhibit P18) and Mr Blazely's evidence that Mr Whiley accepted his offer. Mr Whiley denied that the $400 was made in part payment for the equipment but it is difficult to believe that the plaintiff would have misrepresented the nature of the $400 payment acknowledged by him in that letter. It is a cardinal rule of contract law that an offeror cannot establish the necessary consensus ad idem to constitute an enforceable agreement with the offeree simply by showing a failure by the offeree to decline to accept a proposal. At the time of the offer by Mr Blazely the goods were already in the defendants' possession so reliance cannot be placed upon the doctrine of acceptance by conduct. Nonetheless I prefer Mr Blazely's evidence to Mr Whiley's and I am satisfied on the balance of probabilities that the male defendant did purchase the equipment as alleged by the plaintiffs. The claim for $600 thus succeeds.

[43]

"6 The agreement" (ie, the agreement alleged in par9 of the

Defence and Counterclaim) "was between Mr Whiley and Mr

Blazely. A house had recently been erected upon the subject

land. Mr Whiley asked Mr Blazely, with words to the effect

'Can I buy the house, with the rent coming off the purchase

price?' Mr Blazely agreed. The agreement was wholly oral

but evidence (sic) by the acts of part performance referred

to in rejoinder. The conversation took place at Deloraine in

Tasmania. A price was not specifically mentioned at that

time. The Plaintiffs agreed to payment of installments (sic)

by what was notionally termed 'rent' in reduction of the

value of the house.

7 It was at all times the intention of the parties that the

purchase price would be calculated by reference to the

construction costs of the house together with a component for

the land value. The house had recently been constructed at

the time the Defendants took possession. The value of the

land was not discussed. The value was to be calculated by

the Defendants paying installments (sic) to the Plaintiffs.

The Defendants cannot say how many installments (sic) they

paid or the value of them. The Defendants reserve the right

to supply further particulars pursuant to this request after

discovery.

8 The installments (sic) were paid into the Defendants' bank

account and accumulated. At regular intervals the Defendants

would draw cheques payable to the Plaintiffs and post them to

the Plaintiffs at their address in Queensland. The

Defendants resided upon the property. They treated at all

times as their home (sic). They made improvements to the

home such as the erection of fences and the installation of a

swimming pool. The Defendants undertook all maintenance upon

the house and reimbursed the Plaintiffs for rates and charges

in respect of the land. The Defendants are unable to say

when each instalment was paid and in what amount. The

Defendants reserve the right to supply further particulars

pursuant to this request."

[137]

1 That there be judgment for the plaintiffs against the

defendants in the sum of $600 upon the claim.

2 That the agreement between the plaintiffs and defendants

for sale of the property known as 16A Tower Hill Street,

Deloraine be specifically performed and carried into effect

by the plaintiffs executing in registrable form in favour of

the defendants a conveyance of all that property situate and

known as 16A Tower Hill Street, Deloraine in Tasmania last

described in Conveyance No 38/1103 and that the defendants

pay to the plaintiffs upon delivery of the said executed

conveyance such sum as the plaintiffs have paid in respect of

rates and land tax due upon the said property since the issue

of the writ in this action.

3 That the property situate and known as 16 Tower Hill

Street, Deloraine in Tasmania last described in Conveyance No

40/9404 be sold either by way of public auction or private

treaty and that the net proceeds of such sale after deduction

of all real estate agents' commissions, solicitors' fees and

other costs associated with the sale be divided equally

between the plaintiffs and the defendants after making

allowance in the plaintiffs' favour of one half of rents

actually received by the defendants since the issue of the

writ in these proceedings and one half of the rates and land

tax actually paid by the plaintiffs in respect of the said

property since the issue of the writ in these proceedings.

4 That all further directions or orders necessary for the

purpose of carrying into effect a sale of No 16 Tower Hill

Street, Deloraine be dealt with in accordance with the

provisions of the Rules of Court, O58, r2 by the laying of

proposals before a judge in Chambers for his sanction.

5 That the plaintiffs be restrained from selling, mortgaging,

transferring, assigning or encumbering in any manner either

No 16 or No 16A Tower Hill Street, Deloraine.

6 That the defendants recover from the plaintiffs ninety-five

per cent of their taxed costs both of the claim and the

counter-claim.

7 That the parties have liberty to speak to the minutes of

this order.

At a glance

Court

Decision date

Before

Source

Judgment (137 paragraphs)

Mr and Mrs B S Blazely v Mr and Mrs S v Whiley [1995] TASSC 26; (1995) 5 Tas R 254 (21 March 1995)

Cases Cited (3)