- Unreported Judgment
SUPREME COURT OF QUEENSLAND
de JERSEY CJ
No 10384 of 2005
VILLAWORLD LIMITED (ABN 94010621226)
CAREERPOINT AUSTRALIA PTY LTD (ACN 107 685 594)
THE CHIEF JUSTICE: At this stage I will order that James Edward Spencer be joined as second defendant in the proceeding and that Careerpoint Australia Proprietary Limited be designated the first defendant.
THE CHIEF JUSTICE: This is an application for summary enforcement of an amended Deed of Compromise entered into between the parties in March 2006. The requisite clause is clause 3 relating to four pieces of land.
It obliged the defendant to execute either itself or by a nominee within 21 days of the date of the agreement contracts of sale in relation to those four lots. They were to provide for settlement by or within six weeks such that as provided in subclause (c):
“Failure to settle any contract entitles (the plaintiff) to forthwith proceed to obtain judgment for specific performance or damages.”
In respect of three of the lots no contracts were provided within the 21 day period provided for by clause 3(a). Contracts were proffered and apparently received by the plaintiff on the 8th August 2006 but as recorded in paragraph 3 of Mr Astill's affidavit filed by leave today “without prejudice to the plaintiff's rights in relation to proceedings against the defendant and Mr James Edward Spencer for their breach of the amended Deed of Compromise being to proceed to obtain Judgment upon the Deed for Damages to be assessed”.
In seeking to enforce the amended Deed of Compromise today Mr Morgan who appears for the plaintiff has asked for Judgment for damages to be assessed. He relies for that on clause 3(c) of the Deed and the matter is advanced in relation to those three lots.
The difficulty is that there is no contract in respect of any of those lots which has been executed by the defendant and provided to the plaintiff in the manner provided for by clause 3(a). The subsequently delivered contracts are not satisfactory to the plaintiff and the plaintiff has not accepted that they fall within clause 3(a).
Clause 3(c) is intended to give a right to Judgment by way of specific performance or damages consequent upon the non completion of a contract within the contemplation of clause 3(a). In my view, in order to enforce the Deed of Compromise by way of Judgment for damages to be assessed that right would flow from a valid termination of the Deed giving rise to damages in consequence.
There has been no termination of the Deed; no rescission of the Deed in other words. It remains on foot. In those circumstances, to my mind, clause 3(c) does not operate in the circumstances raised by the applicant here today.
When I talk about termination of the Deed of Compromise consequent upon a repudiation by the defendant I am alive, of course, to the possibility that there may have been an arguable election and it may be necessary, if inclined to follow that course, that the plaintiff give notice to complete to the defendant if there has been an arguable waiver of the essentiality of time notwithstanding paragraph 3 of Mr Astill's affidavit. But those are matters for the plaintiff and its advisers to consider.
In these circumstances, I do not consider that the applicant has established with sufficient clarity an entitlement to summary Judgment so that the application is dismissed.
THE CHIEF JUSTICE: Since I expressed my construction of clause 3 Mr Morgan referred me, for the first time, to material contained in an affidavit by Rohan Andrew Astill sworn 20th July 2006.
As emerges from paragraph 5 and following of that affidavit contracts within the contemplation of clause 3(a) of the Deed of Compromise were in fact executed and provided to the plaintiff but they were not completed. It appears to me that does give operation to clause 3(c).
Following the non completion of those contracts the plaintiffs solicitors wrote on 4th May 2006 to the solicitors for the defendant in these terms:
“Your client's Careerpoint Australia Proprietary Limited and James Edward Spencer have not honoured the terms of settlement. Cheques proffered for the deposits in respect of each contract have bounced and the final date for settlement of all contracts has passed. It is now our client's intention to return to Court to seek final orders pursuant to the terms of the settlement deed. Our client reserves all of its rights pursuant to the breaches that have occurred thus far.”
Clause 3(c) says that failure to settle any contract entitles the plaintiff to proceed forthwith to obtain Judgment at its discretion for either specific performance or damages against both the defendant and in respect of damages only against Mr Spencer. The letter of 4th May 2006 should be regarded as preserving the rights of the plaintiff sufficiently to authenticate its current claim for damages.
The election to take damages rather than specific performance has been made clearly before me by counsel for the plaintiff. The way clause 3 is expressed I consider put the parties into a contractual position where should a contract, as referred to in clause 3(a) not settle, then an entitlement to damages or specific performance at the election of the plaintiff arose. That was the case here. The position was plainly set before the defendant by the letter of 4th May 2006 and I consider the plaintiff has demonstrated thereby an entitlement now to Judgment for damages in respect of those three contracts against the first defendant.
There will accordingly be Judgment against the first defendant in favour of the plaintiff for damages for breach of contract in respect of the contracts executed by the first defendant or its nominee in respect of lots 85, 89 and 90 referred to in clause 3(a) of the amended Deed of Compromise between the parties dated March 2006. Those damages to be assessed.
I am not prepared to enter Judgment summarily against the second defendant. I think it strongly arguable that clause 3(c) of the amended Deed of Compromise established Mr Spencer's liability as guarantor of the first defendant. But, I think the point arguable to the extent where I should not summarily determine that matter against the second defendant.
THE CHIEF JUSTICE: The assessment will take place in the District Court.
THE CHIEF JSUTICE : I will order that the first defendant pay the plaintiff's costs to be assessed. As between the plaintiff and the second defendant costs to be reserved.
- Published Case Name:
Villaworld Limited v Careerpoint Australia Pty Ltd
- Shortened Case Name:
Villaworld Limited v Careerpoint Australia Pty Ltd
 QSC 260
de Jersey CJ
23 Aug 2006
No Litigation History