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Hewitt v Debus Case Note - Essay Example

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Name: Instructor: Course: Date: Hewitt v Debus 59 NSWLR 617 Parties, Court, and Judges Catherine Debus-Opponent Melissa Anne- Hewitt- Appellant Supreme Court-New South Wales Court of Appeal T Lynch- Claimant counsel MJ Stevens- Opponent counsel Baxter Ellis- Claimant Solicitor Tout Abbott- Opponent Solicitor Meagher JA –Minority Judge Giles JA-Minority judge McColl JA- Majority judge Palmer J- Lower Court Judicial Officer Procedural Posture of the Case Hewitt and Debus entered into an agreement regarding a property…
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Hewitt v Debus Case Note
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Download file to see previous pages The vendor issued a notice of termination, and the solicitors for Debus alleged misrepresentation. Hewitt sold the property to another buyer, Mr. Darren Gillham, with their agreement being “subject to and conditional upon” termination of the agreement with Debus. Debus treated Hewitt termination as repudiation and she terminated the agreement herself. Debus did not seek a similar remedy, however she emphasized that her termination of the contract was valid and claimed substantial refund of the money she had paid. She demanded that Hewitt return the money she had paid. A trial judge decided that the purchaser was right because in accordance to the law, a purchaser cannot have both the land and purchase price. The vendor demanded leave to appeal. The application was heard on full submission so that, in case she was granted the leave to appeal, the appeal would be decided without a further hearing. The central matter in this appeal was whether the deed provided that time was important in the performance of Hewitt obligations to pay the amounts required by Clauses 1(c) and (d) and whether the contract between the two parties was validly terminated by the vendor’s notice of termination. Facts The vendor is entitled to terminate for a failure by the purchaser to comply with any term of the agreement irrespective of whether it is an essential term The vendor has a right to terminate where the purchaser fails to pay deposit on time or dishonours cheque for the deposit. Issue The main issue in this case was whether time was important in the performance of Hewitt obligations to pay the amounts required under their agreement and whether the vendor’s notice of termination validly terminated the contract. Holding The seller has a right to terminate for a breach of any term of the agreement irrespective of whether it is an essential term. Analysis Time was not of essence for the payments of the amounts referred in the agreement because the contract was closely similar to a contract for sale of land. A condition of time in land sale contract in equity is not important unless there are special circumstances and the contract has to clearly state that time is essential and has to be implicit from the nature of the contract in the surrounding circumstances. The agreement between the Hewitt and Debus did not have any special circumstances, which implicitly made time for performance important. Because there was no stipulation of time, the vendor was not entitled to terminate the contract because of a delay in the purchaser performing her obligation to pay the instalments. If the period were an essential obligation under the agreement, Hewitt would have been entitled to terminate the contract because of Debus having not considerably performed the necessary obligations. Debus failure to perform within the reasonable period constituted a breach of contract, however Hewitt was not entitled to terminate the contract because Debus substantially performed part of her obligations. The judges cited section 13 of the Conveyance Act to determine whether a time stipulation was essential in equity. From the act, the judges construed that in case the vendor did not regard time to be essential in ...Download file to see next pagesRead More
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