- Unreported Judgment
 QSC 28
SUPREME COURT OF QUEENSLAND
- The plaintiff seeks a declaration that it has an equitable interest in an estate in fee simple in certain property pursuant to a written contract of sale, specific performance of the contract and other relief.
- The defendants are the registered owners of property situated at 109 Tenthill Creek Road, via Gatton in the State of Queensland, (more particularly described as Lot 106 on SP120172, County of Churchill, Parish of Gatton, being the whole of the land comprised in Title Reference 50266413 (“the Property”)).
- On 3 August 2007, the defendants entered into a contract to sell the property to the plaintiff for $2,200,000. The contract of sale contained, in annexure “A”, Special conditions, which included the following:
- The Vendor, at the request of the Buyer, agrees to sign any and all applications the Buyer may wish to submit to the Gatton Shire Council (‘the Council’), and all other entities under the Integrated Planning Act for the above property within 7 days of receiving them.
- All costs associated with Clause 1 are at the Buyers expense.
- The Buyer requires unrestricted access within reason and with 24 hours written notice to the Vendor, for its agents to go onto the above property for the purpose of preparation of reports.
- The Buyer requires 60 days due diligence from the date of Contract. At any time up to the expiry of 60 days from the date of Contract, the Buyer may cancel the Contract without penalty. This clause is solely for the benefit of the Buyer.
- The Contract is subject to and conditional upon then (sic) Buyer lodging the applications provided for in Special Condition 1 within 90 days of the date of Contract.
- The Contract is subject to and conditional upon the obtaining (sic) ‘the Council’ Development Approval within 12 months of the date hereof. If for reasons of ‘the Councils’ (sic) doing, the Development Approval has not been received within the 12 months, an extension of the Contract settlement may be negotiated between the parties.
- Settlement is to occur 30 days after the satisfaction of Special Condition Annexure ‘A’ Clause 6.
- Upon signing of the contract by all parties, the Buyer agrees to pay $1,000.00 as an initial deposit for the contracted property. …
- The Buyer will deliver to the stakeholder … by close of business 7 days after the acceptance of Due Diligence by the Buyer, a ‘Deposit Bond’ … for $10,000.00 which shall satisfy the Buyers’ obligation to pay that part of the Deposit…”
- It was common ground between the parties that the sole issue for determination was whether the plaintiff lodged a development application within the time period provided for under special condition 5 of the contract as extended by agreement. The plaintiff claims that it did. The defendants maintain that the plaintiff failed to do so and that the contract was lawfully terminated by them accordingly.
- As can be seen, the special conditions made provision for the vendor, at the buyer’s request, to sign any application the buyer wished to submit to the Gatton Shire Council (“the Council”) and other entities under the Integrated Planning Act 1997 (“IPA”) within seven days of receipt of same. By special condition 5, the contract was subject to and conditional on the plaintiff, as buyer, lodging the development application with the Council within 90 days of the date of contract; that is by 1 November 2007.
- By a facsimile sent on 9 August 2007, the defendants’ solicitors noted the timetable under the contract as:
- Buyer to complete due diligence by 2 October 2007;
- Buyer to lodge all necessary approvals with the Council by 1 November 2007;
- Buyer to provide to the stakeholder a deposit bond of $10,000 by 9 October 2007
- Council to register change of use and development application by 4 August 2008.
The solicitors also noted that settlement was due to be effected 30 days after Council development approval was granted, but no later than 2 September 2008.
- On 20 September 2007, at the request of Mr Williams, a director of the plaintiff, a 60 day extension was given in respect of special conditions 4 and 9 and in addition the date for satisfaction of special condition 5 was extended “to 150 days from the original date of contract”, being 31 December 2007.
- Thereafter further requests were made on behalf of the plaintiff to the defendants for extension of the special condition, but were declined.
- The Council offices were closed for the Christmas vacation period from 1.30 pm on Friday, 21 December 2007 until 2 January 2008. There was a notice at the Council premises stating the period during which the Council would be closed. No request was made for the defendants to sign any application before 21 December 2007, although Mr Williams did make a request for a three month extension on that day which was refused. The defendants had become aware by then of the Council’s Christmas closure dates. Mr Williams maintained that he was not aware of the closure dates until after 21 December 2007.
- On 22 December 2007, the defendants entered into a separate contract for the sale of the property to a third party, subject to the contract with the plaintiff being cancelled by 3 January 2008.
- On 27 December 2007, Mr Williams obtained the completed development application and proposed plan of subdivision. He contacted the defendants for them to sign the application and a meeting was arranged for Saturday, 29 December 2007. On that date Mr Williams sent a facsimile advising that an extension was no longer required and requesting that the defendants sign the application, stating that he would lodge it with the Council as soon as it was signed. A copy of the development application was enclosed.
- On 29 December 2007, Mr Williams met Mr Spooner and asked him to sign the application. Mr Spooner refused to do so, explaining that under the contract the defendants had seven days to examine the application and refer it to their solicitor before signing. On 30 December 2007, Mr Williams sent the defendants a facsimile complaining that they were frustrating the plaintiff’s attempts to comply with its contractual obligations. He sent a further facsimile enclosing a copy of the application for the defendants’ signature, stating that he would collect it “before close of business 31/12/07”. On 31 December 2007, following consultation with their solicitors, the defendants agreed to sign the development application.
- The offices of the Gatton Shire Council were closed for business on Monday, 31 December 2007, although that day was not an official public holiday. At about 11.15 am on 31 December 2007, Mr Williams put a version of the application, (unsigned by the defendants) through a slot in the front door of the office of the Council. But soon after, Mr Spooner came across Mr Williams and handed him the application duly signed by the defendants. Mr Williams’ uncontradicted evidence was that he returned to the Council’s premises at about 4.20 pm and put the signed application through the slot in the Council’s door together with a cheque and a handwritten covering sheet stating that the first application was not properly signed and that the cheque accompanying it had been stopped.
- On 31 December 2007, in anticipation that the plaintiff would not be able to comply with the obligation in special condition 5, the defendants’ lawyers prepared a notice of termination of the contract. Although dated 31 December 2007, it was sent by facsimile to the solicitors for the plaintiff on 1 January 2008. It stated:
“We advise that as your client has not lodged the Applications by the 31st December 2007, we have been instructed by our clients to give notice of termination of the Contract of Sale dated the 3rd August 2007.
Accordingly, the Contract is now at an end.”
- In response, Mr Williams wrote to the defendants’ solicitors on 1 January 2008 stating:
“Contrary to assertion, the application the buyer wished to submit was submitted to the Gatton Shire Council Office via their overnight mail box at the front door of the Council building at around 4.20 yesterday, 31/12/07. Immediately after your client signed it.
This follows the submition (sic) by me of a similar document to the Council at around 11.15am 31/12/07 but did not contain your client’s signature because your client refused to, (sic) my repeated request to sign the application form.
Accordingly, the buyer does not accept your clients’ purported termination. …”
- A further copy of the notice of termination was sent by the defendants’ solicitors to the solicitors for the plaintiff on 2 January 2008 and a copy was hand delivered to Mr Williams at the Council that morning.
- The plaintiff’s solicitor wrote to the defendants’ solicitors on 2 January 2008 rejecting the assertion that the contract had been terminated. On 2 January 2008, the plaintiff lodged a Caveat over the title to the Property and was allocated Dealing No. 711308525.
- On 2 January 2008, the offices of the Gatton Shire Council re-opened.
- By letter dated 10 January 2008, Ms Tracy Ryan (who was then Manager, Planning and Environment of the Council) wrote on behalf of the Council in response to a request for information by the defendants’ solicitors concerning the plaintiff’s application and advised:
“… The Application was received by Council’s Records Department on 2 January 2008. It was put through Council’s after hour’s mail box between 3.00pm 21 December 2007 and 8.30am on 2 January 2008. An Acknowledgment Notice was issued on 3 January with an Information Request to follow. [The latter was issued on 17 January 2008]”
- On 5 August 2008, Ms Ryan, who had become employed by the Lockyer Valley Regional Council, the body which replaced the Council, wrote to the defendants’ solicitors stating:
“The Gatton Shire Council Office was closed from 21 December 2007 and re-opened on 2 January 2008. It is noted that there is a slot in the front door of the office, however, this is not an official ‘mail box’. From time to time items are placed through the door. When staff return (sic) to work on 2 January 2008, an Application had been placed through the door slot. Council considers that this item was received and is dated 2 January 2008.
Council has no way of determining when the Application was placed in the mail slot during the ‘shut down’ period. This Application has officially lapsed as of 3 April 2008, should the Applicant wish to re-lodge the Application, they will be required to submit the appropriate forms, fees and site plans.”
- Ms Ryan gave evidence confirming the statements in these letters. She also confirmed that there was no secure box or container for the collection of material deposited. Such material simply fell to the ground. She reiterated that the slot provided at the Council premises was not an official mailbox for the Council. She indicated that there was a procedure for the collection of documents through the slot. Employees at the Council’s front reception would pick up material before the Council doors were opened. They would either open and stamp the documents with a receipt date, or send the documents to the records department where that process would take place, before the item was sent on to the appropriate department.
- Mr O’Connor, Chief Executive Officer of the Lockyer Valley Regional Council also gave evidence concerning the slot in the Council door. He stated that its purpose was to allow for anyone to correspond with the Council when it was closed.
Was the application “lodged” within the meaning of special condition 5 of the contract within time?
- The issue for determination is whether or not the application was “lodged” within time in accordance with special condition 5.
- It was not in contention that 31 December 2007 was not a Public Holiday in Gatton, so the provisions of the contract relating to the calculation of business days where an act is to be done on a day that is not a business day are not relevant.
- On behalf of the plaintiff it was contended that the application was “lodged” when it was placed through the slot in the door of the Council Chambers, which acted as an “after hours mail box”. It was submitted that that mail box was secure inside the building for the purpose of receiving documents by the Council. Accordingly, the application was “lodged” on 31 December 2007 within the time required by special condition 5.
- On behalf of the defendants, it was submitted that the act of “lodging” involves two separate acts, firstly, an act of parting with possession of a document or other item of property, and secondly, an act of receiving the document or other item of property into the possession or custody of another party. It was argued that while the first aspect was satisfied by the placing of the signed application through the slot, that alone was insufficient. The application was not lodged until received or collected by the Council staff on 2 January 2008; that is, when the Council Registry office recovered the application.
- As was submitted by the defendants, special condition 5 of the contract is to be construed having regard to the principle of objectivity reaffirmed by the High Court in Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 and Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165, where at 179 it was stated:
“What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.”
- At the time the contract was entered into, and at the time of the agreed extension, the surrounding circumstances known to the parties did not include that the Council offices were closed between 21 December 2007 and 2 January 2008.
- Counsel for the defendants submitted that, in determining what a reasonable person standing in the shoes of the parties would have expected the plaintiff to do to satisfy the requirement of “lodging” the application, regard should be had to the ordinary meaning of the word “lodge”. The Shorter Oxford English Dictionary (5th ed) defines “lodge”, inter alia, as:
“5aGet (a thing) into an intended place;
c Deposit in a specified place of custody or security.
d Vest or represent as residing in a specified person or body; place (power etc.) with or in the hands of a person or body.
e Deposit in court or with an official a formal statement of (a complaint, objection, etc); bring forward, allege, (an objection etc).”
- Reference was also made to the definition of “lodge” in Butterworths Australian Legal Dictionary 1997, which states:
"1. To deliver and place a document or thing into the possession of a person in relation to an official procedure. Lodgment requires a degree of physical acceptance by the person to whom the thing is given and is more than the mere placing or depositing of the object with that person: Re Angus Fire Armour Australia Pty. Ltd. v. Collector of Customs (NSW) … If sent by post, a document is not lodged unless and until it is received and accepted by the intended recipient. The recipient has a discretion as to whether or not to effect the lodgment. If the document does not comply with internal guidelines or procedures prescribed for lodgment (if any), then the document will not have been lodged even though it may be in the recipient’s possession or physical control. …”
- Counsel for the defendants referred to a number of decisions in support of the construction advanced on their behalf. In Linfox Transport (Aust) Pty Ltd v Toohey  VSCA 122, Batt JA in the Victorian Court of Appeal held as follows:-
“The appropriate meaning of the verb ‘lodge’ in sub-s.(3) is sense 3c in The Oxford English Dictionary, namely, ‘To deposit in court or with some appointed officer a formal statement of (an information, complaint, objection)’. Somewhat similarly, the definition in Butterworths Australian Legal Dictionary commences, ‘To deliver and place a document or thing in the possession of a person in relation to an official procedure’. Cases in which such a meaning of the word has been judicially adopted include Angus Fire Armour Aust. Pty Ltd v. Collector of Customs (NSW); Hong v. Minister for Immigration and Multicultural Affairs; and Francis v. City of Ringwood; cf Purden Pty Ltd v. Registrar in Bankruptcy. It is unnecessary to consider what, if any, act by way of response on the part of the putative depositee is necessary for lodgement to have occurred or to consider whether ‘lodging’ is equivalent to ‘filing’ at common law or under the Rules. Those aspects are considered in the cases cited. The essence of the conception of lodgement for present purposes is the depositing in a court or government office or with some public officer or functionary. Thus, a plan of subdivision was said to be ‘lodged’ or ‘deposited’ in the Office of Titles: Shelmerdine v. Ringen Pty Ltd.”
- In Francis v City of Ringwood and Ors (1978) 54 LGRA 323, the Court determined that an appeal had not been “lodged” with the Registrar of the Town Planning Appeals Tribunal within the time prescribed by the Town and Country Planning Act 1961 (Vic). The regulations made under the Act made provision for appeals to be lodged during office hours at the office of the Registrar or sent by post. The relevant document was posted but not physically received within the prescribed time. McInerney J at 327 said:
“I am unable to take the view that the word ‘lodging’ … is to be regarded as satisfied when a letter is placed in the post addressed to the Registrar with the consequence that the document would be deemed to have been lodged with the Registrar, although it never arrived and never was received into his physical custody. In my view, a document is lodged when it comes into the hand of the Registrar or his staff when it is received in the Registry.”
- In Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477, the Court considered whether an application to the Administrative Appeals Tribunal which had been sent by post had been “lodged” within time. Construing the word “lodge” for the purposes of s 68 of the Administrative Appeals Tribunal Act 1975 (Cth) in accordance with its ordinary dictionary meaning, it was held by a majority that the document had been lodged when first received at the Registry, notwithstanding that the filing fee had not been enclosed. Northrop J observed at 488-489:
“Thus, in s 68 of the Act, the word ‘lodged’ is used in the sense of placing or depositing a document at the office of the Registry or a Deputy Registrar. It appears to be the practice of the Tribunal to allow this to be done by post. Whether the lodging is done by post or by depositing the document at the office, a concept of acceptance is required in a sense similar to that required with respect to the presentation of a document. There must be a physical acceptance of the document by an officer of the Registry. Thus, if an application is posted, but not delivered to a Registry, the application is not lodged. In all probability, it is lodged when it is received at the office of the Registry. Similarly a document deposited on a counter at the office of a Registry may not be lodged, but if taken by an officer, or in other words received by that officer, it is accepted for the purpose of lodging.”
- In Hong Ye v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 327, the question for consideration was whether an application to review a Refugee Tribunal decision was “lodged” with the registry of the Federal Court when it was sent to the Registry by facsimile transmission. The Court said at 330:
“What will suffice to satisfy that requirement that a document be ‘lodged’ with a Registry? The word ‘lodged’ appears to us to have no special or technical meaning. It is then to be given its ordinary meaning. A reference to the Oxford English Dictionary shows that the word has a number of meanings, but two appear apposite. They are:-
c.Deposit in a specified place or custody or security.
e.Deposit in Court or with an official a formal statement of (a complaint, objection etc); bring forward, allege, (an objection) etc.
In accordance with these meanings an application to review will be ‘lodged’ when it comes into the possession of a registry or the staff of a registry. The means by which possession is obtained does not matter. It could come about when an application is delivered into the hands of the registry staff or, if the application is posted, when it is received by the registry. When an application to review is sent by facsimile transmission to a facsimile machine that is located in the Registry the application will be in the possession of the registry when the transmission is complete …”
- The Court observed that in Hong Ye, as in Angus Fire Armour, the focus was on the receipt of the relevant document in the Registry. The Court observed at 331, referring to Angus Fire Armour:
“It is to be noticed that Northrop J considered that lodgement comprised two acts, namely the delivery of an application to review and the acceptance of it by an officer of the registry. What his Honour meant by ‘acceptance’ in this context is a little unclear. Earlier in his reasons (at 488) his Honour suggested that ‘acceptance’ meant ‘physical acceptance’ and in the passage cited, his Honour appears to equate ‘acceptance’ with the physical receipt of the document. Provided ‘acceptance’ is understood to mean that the Registry had obtained possession of the document, we agree with his Honour’s views.”
- The Court concluded at 332:
“… when the question is not whether a proceeding has commenced but merely whether a document has been ‘lodged’ there is no difficulty with the conclusion that the document has been ‘lodged’ when it is physically deposited with the Court or Tribunal or when it has come into the possession of the Court or Tribunal by some other means such as by post or facsimile transmission.”
- In Abidin v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 237, the Full Court of the Federal Court (comprising Branson, North and Gyles JJ) considered an appeal from a decision of the Refugee Review Tribunal. The appellant argued that he had “lodged” his application when he had done all that he was able to do to achieve substantial compliance with the stipulated requirements and that by putting his application in a box at the Port Headland Detention Centre used for the purpose of conveying applications of the sort he was making, he should be deemed to have constructively lodged his application with the Registry of the Federal Court. The Court held:
“In our opinion, an application is not lodged until it comes into the possession of a Registry or the staff of a Registry. This is the inevitable result of the ordinary meaning of the words of the provision (Francis v City of Ringwood (1978) 54 LGRA 323). There is no such concept as constructive lodgment although, as Hong Ye shows, there may be room for debate as to whether in particular circumstances in which a document comes to a Registry it is ‘lodged’ (see also Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477; Talbot v NRMA Holdings Ltd (1996) 68 FCR 590; and Ghomrawi v Minister for Immigration and Multicultural Affairs  FCA 724. We do not see any relevant difference between ‘lodgment with’ and ‘lodgment at’ a Registry.
It is correct that the precise point at issue here did not arise for decision in Hong Ye. Indeed, that decision was very favourable to applicants in construing ‘lodged’ as a sui generis concept, different from the filing of an application to commence proceedings. Nonetheless, the sub-stratum of that decision was that the lodgement involved at least receipt at the Registry and this was in accord both with the authorities referred to in Hong Ye and with the numerous later decisions of single judges to which the respondent referred.”
- The defendants accepted that at first blush the decision in Hong Ye may appear adverse to them given the lenient construction adopted by the Court. On behalf of the defendants it was conceded that while Hong Ye “may have opened up room for debate” as to the circumstances in which a document comes to a Registry and is deemed to be lodged, there is a distinguishable difference between the circumstances in Hong Ye and the present case. In Hong Ye the facsimile machine was inside the Registry and proof of time of delivery would have existed. I agree that the slot in the door of the Council premises is not akin to the facsimile machine inside the Registry in Hong Ye.
- The meaning of the word “lodge” is informed by the contractual context. The document to be lodged for the purposes of special condition 5 was one which initiated a formal process with the Council. Failure to comply with the condition triggered contractual rights. In that commercial context, an interpretation which promoted certainty as to the contractual rights and obligations of the parties is to be favoured. Approaching the matter from that standpoint, and applying the principle of objectivity to the interpretation of the word “lodge”, I consider that the submission of the defendants is to be preferred.
- The word “lodge” should be construed as connoting more than merely the “depositing” of a document at a particular location. Rather, in this context, it connotes the depositing of a document with the depositee in such a manner as to initiate an official process, and requires some act or conduct by the depositee in that regard. Thus lodgment would not have been satisfied by simply mailing the application to the Council, nor by simply leaving it in the premises of the Council. Nor was the application lodged by placing it through the “all purpose” slot that was available for the after hours receipt of documentation.
- In my view, some act or conduct by the depositee, in this case the Council, was required in order that a lodgment was effected. It is of note that the application was not placed at a collection point that the Council had specifically provided or identified as being the place for the lodgement of applications, rather it was placed in a general purpose mail box. In the absence of such conduct by the Council, what was required in this case by the depositee was at least the collection of the application by Council officers and its stamping as being received. That occurred on 2 January 2008.
- Since special condition 5 was not fulfilled by the specified date, either the buyer or the seller had an entitlement to terminate the contract for non-fulfilment: Gange v Sullivan (1966) 116 CLR 418 at 441-442. Its non-fulfilment was not due to any fault or conduct on the part of the defendants. There was no issue that its fulfilment had been waived. Nor was any issue of unconscionability raised in respect of the defendants’ conduct by the plaintiff.
- The mere extension of time did not destroy the essential nature of the time stipulation concerning special condition 5: Spencer v Cali  2 Qd R 456. The defendants were entitled to terminate the contract after 31 December 2007 as they did.
- In the circumstances, there will be judgment for the defendants on the claim and counterclaim. I declare that the defendants lawfully terminated the contract of sale dated 3 August 2007. Accordingly, the plaintiff’s claim for specific performance must be dismissed and the caveat removed. I order that Caveat No. 711308525, lodged by the plaintiff in respect of Lot 106 on SP120172, County Churchill, Parish Gatton, be removed. I shall hear submissions as to costs.
- Published Case Name:
Wall Street Enterprises Pty Ltd v Spooner & Anor
- Shortened Case Name:
Wall Street Enterprises Pty Ltd v Spooner
- Reported Citation:
 QSC 28
03 Mar 2009
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|Primary Judgment|| 2 Qd R 392||03 Mar 2009||-|