CIVIL – CONTRACT – MORTGAGE – VENDOR FINANCE – Defendant sold rural land to the plaintiffs and provided a loan of $100,000 to the plaintiffs to be repaid by three equal annual instalments, secured by a requested first mortgage – Default by plaintiffs – Defendant enters into possession of land – Property offered for sale by public auction Whether plaintiffs had a statutory claim against defendant under Conveyancing Act 1919 section 111A(4) Whether the plaintiff’s had a statutory claim under the National Credit Code Claim by plaintiffs that defendant converted possessions to its own use – Chattels and fixtures left by plaintiffs on the land Cross-claim by the defendant for losses sustained by the defendant because of default under the mortgage Cross-claim by the defendant for trespass to defendant’s sheep
Qld Court of Appeal: Kelly & Anor v Slade & Anor  QCA 197 (18/191) Sofronoff P and Morrison JA and Atkinson J [Blue Ocean Law instructed Andrew Skoien of Counsel, second chair Harry Knowlman of Counsel for the Appellants]
Catchwords APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTION OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – NECESSITY FOR FINDING TO BE CLEARLY WRONG – where the appellants commenced proceedings to recover money which they said was agreed to be paid by the respondents in consideration of the transfer of the appellants’ interests in certain farmland – where in the course of discussions regarding the transfer, two documents were drawn up in lieu of a properly executed contract – where the learned primary judge made findings about the credibility of the witnesses but did so with reference to only part of the evidence – where the learned primary judge failed to take into account the two contemporary documents when testing the veracity of the witnesses – where this failure resulted in the learned primary judge making erroneous findings not supported by the evidence – whether a retrial should be ordered.
(For disputes arising under the Contract for Sale of Land - 2005 Edition, Contract for the Sale and Purchase of Land - 2014 Edition or any subsequent edition)
If you are involved in a dispute concerning a contract for the sale of land, and your solicitor is a member of the Law Society, the Law Society's Conveyancing Dispute Resolution Scheme may be able to provide assistance.
Mediation is a means of resolving a dispute whereby a neutral person, the mediator, helps the disagreeing parties reach a resolution outside of a court room. The mediator helps the parties clarify the disputed issues and identify possible options but does not impose a decision. It is not the mediatorsfunction to give legal advice to the parties. Mediation is useful when the parties are prepared to negotiate in good faith and work towards a mutually satisfying agreement.
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Parents and children rarely put agreements about granny flats in writing and almost never consult a lawyer. But when these arrangements go wrong, the consequences can be disastrous and costly for all.
Catchwords MONEY – PAYMENT – OTHER MATTERS – where the plaintiffs transferred their respective interests in the farm to the defendants as joint tenants – where the terms upon which that transfer occurred were in dispute – whether the defendants agreed to pay $250,000 for the first plaintiff’s share. EVIDENCE – ADMISSIBILITY – ADMISSIONS – WHAT CONSTITUTES – where there is evidence of subsequent conduct – whether that subsequent conduct is properly dealt with as an admission of the terms of the informal agreement alleged by the plaintiffs – whether that subsequent conduct is properly dealt with as an inference that the parties made an informal agreement on particular terms.
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An initiative of the New South Wales Court of Appeal supported by the Judicial Commission of New South Wales: created as a resource for legal practitioners and judges in Australian and elsewhere.
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An affidavit is a written statement of the facts of a case in your eyes. The person who is relying on the affidavit must confirm that the contents are true.
If you have a commercial dispute and your negotiations have broken down, we may be able to help. Learn about our dispute resolution services.