PATEMAN & ANOR -v- DAW KOH & ANOR [2007] WASCA 85 (30 April 2007)

PATEMAN & ANOR -v- DAW KOH & ANOR [2007] WASCA 85 (30 April 2007) - WASCA 2007 case summary — Zoe

[24]

"1. Definitions

In this Deed, including the Recitals, unless the contrary intention appears:

1.1 'the Building' means the building situated on the Land;

1.2 'the Buyer' means whichever of the parties receives a Notice of Sale from the other party pursuant to clause 7.1 herein;

1.3 'the Completion Date' means the date specified in item 1 of the Schedule;

1.4 'the Execution Date' means that date mentioned in item 2 of the Schedule;

...

1.6 'the Land' means the land described in item 3 of the Schedule;

1.7 'Lot 1' means that portion of the Land shown as Lot 1 on the Plan;

1.8 'Lot 2' means that portion of the Land shown as Lot 2 on the Plan;

1.9 'Notice to Buy' means the Notice to Buy given by the Purchasers to the Vendor under clause 7.2 herein;

1.10 'Notice to Proceed' means the Notice to Proceed given by the Vendor to the Purchasers under clause 9 herein;

1.11 'Notice of Sale' means the Notice of Sale given by the Vendor to the Purchasers under clause 7.1 herein;

1.12 'the Plan' means the Plan annexed to this Deed;

1.13 'the Proportions' means those proportions for each of the parties specified in item 4 of the Schedule hereto;

1.14 'the Purchase Price' means the sum specified in item 5 of the Schedule;

1.15 'Registrar' means the officer of the Land Titles Office authorised to sign diagrams or plans as approved diagrams or plans for the purpose of registration at the Land Titles Office;

1.16 'Restrictive Covenant' means a restrictive covenant in the usual form whereby the Proprietor of Lot 2 covenants with the Proprietor of Lot 1 not to build any structure of a height greater than 16.42 metres above the Australian Height Datum;

1.17 'the Seller' means whichever of the parties gives the other party a Notice of Sale pursuant to clause 7.1 herein;

1.18 'Subdivision Costs' means all the costs of completing the subdivision of the Land in accordance with clause 12 including the demolition of the Building, the connection of all utilities and services required pursuant to any approval of subdivision by any authority, survey costs, application and Titles Office fees;

1.19 'the Valuer' means the Valuer appointed pursuant to clauses 8.2 or 8.3 herein;

1.20 where the context so admits the expressions 'the Vendor' and 'the Purchasers' include the personal representatives, estates and successors in the title of the Vendor and the Purchasers;

1.21 words importing any gender include all genders;

1.22 words importing the singular include the plural and vice versa;

1.23 where any party comprises more than one person the obligations and liabilities of that party under this Deed shall be joint and several obligations and liabilities of those persons;

...

[61]

"It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, 'even though the construction adopted is not the most obvious, or the most grammatically accurate', to use the words from earlier authority cited in Locke v. Dunlop ( (1888) 39 Ch. D. 387, at p. 393), which, although spoken in relation to a will, are applicable to the construction of written instruments generally; see also Bottomley's Case ( (1880) 16 Ch. D. 681, at p. 686). Further, it will be permissible to depart from the ordinary meaning of the words of one provision so far as is necessary to avoid an inconsistency between that provision and the rest of the instrument. Finally, the statement of Lord Wright in Hillas & Co. Ltd. v. Arcos Ltd ([1932] UKHL 2; (1932) 147 L.T. 503, at p. 514), that the court should construe commercial contracts 'fairly and broadly, without being too astute or subtle in finding defects', should not, in my opinion, be understood as limited to documents drawn by businessmen for themselves and without legal assistance (cf. Upper Hunter County District Council v. Australian Chilling and Freezing Co. Ltd ([1968] HCA 8; (1968) 118 C.L.R. 429, at p. 437))."

[76]

"In Bray v Bray ((1926) [1926] HCA 40; 38 CLR 542), where the language of s 4(1)(b) of the Partition Act 1900 (NSW) was virtually identical to s 126(1) of the Act, Knox CJ said (ibid, at p 545):

'So far as I can see, the object of the Act was to provide an alternative remedy to partition. ... I think that it is clear that ... what the Court has to consider is which is the better course for all parties between two alternatives, namely, is it better that there should be a partition or that there should be a sale, and the onus of showing that partition is better, where the owners of more than one half of the property desire a sale, is upon the person opposing a sale.'

And Higgins J said ((1926) 38 CLR, at p 546):

'I regard a sale as an alternative to a partition and not to the status quo.'

The weight of authority leads inevitably to the conclusion that s 126 is concerned with the options available to the Court and that the words 'unless it sees good reason to the contrary' are directed at the power to order sale as opposed to partition (See Pitt v Jones (1880), 5 App Cas 651; Bray v Bray; De Campo Holdings Pty Ltd v Cianciullo, [1977] WAR 56; Martin-Smith v Woodhead, [1990] WAR 62). At common law one co-owner could not insist upon partition of the land. The right to compel partition derived from the statutes of partition of 1539 and 1540 (32 Hen VIII c 1 and 32 Hen VIII c 32. See also The Partition Act 1696 (UK) (8 & 9 Will III c 31) and The Real Property Limitation Act 1833 (UK) (3 & 4 Will IV c 27), s 36). Partition was often impracticable or inconvenient; nevertheless the courts held that there was no power to refuse that statutory remedy (Parker v Gerard [1737] EngR 53; (1754), Amb 236 [27 ER 157]; Baring v Nash [1813] EngR 352; (1813), 1 V & B 551, at p 554 [1813] EngR 352; [35 ER 214, at p 216]; Patel v Premabhai, [1954] AC 35, at p 42).

In consequence the remedy of sale was introduced by The Partition Act 1868 (UK) (31 & 32 Vict c 40) and by comparable legislation in the Australian colonies (For example, The Partition Act 1878 (WA)). But sale was made available as an alternative to partition; the courts were obliged to grant the remedy of sale unless there was good reason not to do so and to direct partition instead (Re Cordingley (Deceased) (1948), 48 SR (NSW) 248, at p 249). Where a discretion to refuse any relief has been held to exist, it has been because the language of the legislation clearly points to the existence of such a discretion (For instance, Ngatoa v Ford (1990), 19 NSWLR 72 where s 66G(4) of the Conveyancing Act 1919 (NSW), which provides that the court 'may' appoint trustees for the purposes of a statutory trust for sale, was held to confer a limited discretion on the court to refuse to make such an order). Section 126 of the Act is substantially similar to provisions contained in The Partition Act 1878 (WA) and no such discretion may be found in its language. The only discretion is that to which reference has already been made, namely, to refuse sale and to order partition for 'good reason'."

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (135 paragraphs)

The proceedings including the pleaded claim and the pleaded defence

Ground 1: approval for the subdivision of the Land in accordance with cl 12

Ground 1: cls 6 and 7: restrictions on the sale of the Land to a third party and Delma's and Ronda's right of preemption

Ground 1: sale by agreement as between Delma and Ronda

Legislation Cited (12)

Cases Cited (8)