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In the Future Holdings Pty Ltd v Benson and Burnside Holdings Pty Ltd

 

[2010] QSC 471

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

In the Future Holdings P/L as Trustee for the Norma Jean Semple Trust v Benson and Burnside Holdings P/L & Anor [2010] QSC 471

PARTIES:

IN THE FUTURE HOLDINGS PTY LTD AS TRUSTEE FOR THE NORMA JEAN SEMPLE TRUST
ACN 126 128 005
(plaintiff)
v
BENSON AND BURNSIDE HOLDINGS PTY LTD
ACN 123 012 957
(first defendant)
JENNIE JOYCE BURNSIDE
(second defendant)

FILE NO/S:

S99 of 2010

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

16 December 2010

DELIVERED AT:

Rockhampton

HEARING DATE:

10 December 2010

JUDGE:

McMeekin J

ORDER:

Judgment for the defendants against the plaintiff with costs.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – where defendants apply for summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) – where parties entered into a written agreement for the sale of the plaintiff’s interest in land to the first defendant – where second defendant guaranteed the obligations of the first defendant under the agreement – where a dispute arose as to whether the purchase price included any GST payable on the transaction – whether plaintiff has any real prospect of succeeding against the defendants – whether there is a need for trial of the claim – whether summary judgment against the plaintiff should be granted

Property Law Act 1974 (Qld), s 59

Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293

Bolton Properties P/L v J K Investments (Australia) P/L [2009] 2 Qd R 202; [2009] QCA 135

Gray v Morris [2004] 2 Qd R 118; [2004] QCA 5

Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72

Nowrani Pty Ltd v Brown [1989] 2 Qd R 582

Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259; [2002] QCA 224

Regent v Millett (1976) 133 CLR 679; 10 ALR 496

Sunbird Plaza Pty Ltd v Boheto Pty Ltd [1983] 1 Qd R 248

Tweddell v Henderson [1975] 2 All ER 1096

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7

COUNSEL:

R J Clutterbuck for the plaintiff

D P O’Brien for the defendants

SOLICITORS:

Sanderson & Parks for the plaintiff

Purcell Chadwick & Skelly for the defendants

  1. McMEEKIN J: The first and second defendants apply for summary judgment pursuant to Rule 293 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).  In the alternative they seek that the Statement of Claim be struck out pursuant to Rules 171(1)(a), (b) and (e), and 171(2) of the UCPR or that the proceedings against the defendants be permanently stayed. 
  1. The subject matter of the dispute between the parties concerns a written agreement entered into by them on 18 August 2009. By the terms of the agreement the plaintiff agreed to sell its interest in certain land located at 1967 Anzac Avenue, Mango Hill to the first defendant and the shares that it held in the first defendant to the second defendant. The purchase price for the land was to be paid in two instalments. The first instalment was in the sum of $1,061,631.79 to be paid on or by the date for completion and the second instalment was in the sum of $850,000.00 and to be paid 18 calendar months after the date for completion.
  1. The dispute that has arisen is as to whether the purchase price included any goods and services tax (“GST”) payable on the transaction or alternatively whether there was an obligation on the first defendant to pay any such tax over and above the identified purchase price.
  1. Clause 1.2(m) of the written agreement provided:

“(m)Unless otherwise specified in this agreement, all amounts payable under this agreement include any GST which might be payable on any supply which might thereby arise.”

  1. Self evidently, if clause 1.2(m) applies, then the purchase price expressed in the agreement includes any GST which might be payable and the plaintiff cannot succeed.
  1. The second defendant has an interest in the matter as, whilst the primary obligation to pay the purchase price lies on the first defendant, the second defendant agreed to guarantee the first defendant’s obligations under the agreement.

The Plaintiff’s Pleading

  1. By paragraph 7 of its amended statement of claim, the plaintiff alleges:

“On or about 31st August 2009 it was agreed as between the parties hereto and others referred to therein, and subsequently confirmed in writing that a variation of the agreement dated 18th August, 2009 shall be effected which, was, on or about 30th September, 2009 submitted to the plaintiff in accordance with the terms of the agreement of 31st August, 2009 and thereafter confirmed by Memorandum Writing to the defendant by the plaintiff as being acceptable on or about 1st October, 2009.

 

In the premises, the agreement dated 18th August, 2009 was amended by way of Deed of Variation and subsequent Memoranda in writing.”

  1. It is then pleaded:

“10.In accordance with the Deed of Variation, settlement was to be effected seven (7) weeks from the finance date and the sum of $850,000.00 was to be paid in accordance with the terms therein referred and as specified in clause 2.2 of the original agreement together with GST.

 

10A. In the alternative, to matters pleaded in paragraph 7A [I assume a reference to the paragraph 7 to which I have earlier referred] herein the plaintiff and the defendant pursuant to the terms contained within the Deed of Variation and incorporated in to the Memorandum of Agreement, pursuant to Clause 1(g) of the Agreement and Schedule 2 of the Deed of Variation, settlement was effected in accordance with the terms of the Deed of Variation on 23rd November, 2009 and the parties thereupon carried out the terms of the agreement in performance of the Deed of Variation despite same not being executed by the plaintiff and the defendant.

 

Particulars

 

  1. On the 23rd November, 2009 the plaintiff and the defendants attended settlement of the transaction in accordance with the schedule amending the date for settlement and put into effect, the terms of the Deed of Variation thereby.  Further, the Deed of Variation contained a clause specifying payment of GST and thereupon, the defendant by attendance and performance of the agreement accepted the terms of the variation by conduct.  In the premises, the agreement has been varied and Deed of Variation adopted by the performance by the parties of the variation and the conduct of each is relied upon to evidence the existence of the agreement as between the plaintiff and the defendants.
  1. Further and or in the alternative, the defendants are estopped by their conduct from denying the Deed of Variation, the effect of which was to amend the date for settlement and to incorporate provision with respect to payment of GST.”
  1. With due respect, the pleading is not a model of clarity.
  1. The case was argued on the basis that the plaintiff alleges three things in the alternative:
  1. that cl 1.2(m) was varied by the terms of a conversation between the solicitors and the entering into of a Deed of Variation;
  1. that whilst there was no agreement in writing varying the purchase price such a change to the agreement was evidenced by sufficient acts of part performance so as to avoid the operation of s 59 of the Property Law Act 1974 (Qld); or
  1. that there was a Waltons Stores type estoppel preventing the defendants from denying that they had agreed to vary the contract.

The Course of Events

  1. The affidavit evidence explains what in fact occurred. Apart from a dispute as to a conversation held on 31 August 2009 between the solicitors the facts are agreed, although the interpretation of a Deed is in dispute.
  1. On 31 August 2009, a conversation took place between Mr Skelly of Purcell Chadwick & Skelly, the defendants’ solicitors, and Mr Parks, of Sanderson & Parks, the plaintiff’s solicitors. The solicitors disagree as to the terms of the conversation that occurred.  For the purposes of a summary judgment application it must be assumed that Mr Parks’ version is accepted.  Mr Parks records in his affidavit his recollection of the conversation as follows:

“I can recall making an observation to Mr Skelly that the GST in the matter of the sale and purchase was, if applicable, on top of the purchase price, that is, in addition thereto, not inclusive in the purchase price.  Mr Skelly disagreed with this stating that the Contract provided for the purchase price to include any GST required to be paid.  It was accepted by me that the Contract… did provide at Clause 1.2… at subclause 1.2(m)… [the clause is here inserted].  I advised Mr Skelly that it had recently come to my attention that that was not the intention of my client that any GST be payable was to be included in the purchase price.  I basically said that it was her understanding that there would be no GST payable but if any such GST was in fact to be paid it was on top of the purchase price and that was her understanding from the negotiations as between her and the Purchaser. 

 

I pointed out to Mr Skelly that the matter may well fall over unless some form of agreement could be reached in respect thereof and he advised me that he would take instructions from his client.”

  1. Mr Parks has annexed his notes of the conversation to his affidavit and the notes record:

“Can settle in Brisbane. GST to be clarified as GST on top of PP.”

  1. Mr Skelly disagrees that there was any discussion about the GST aspect of the matter.
  1. The point of the telephone call, so Mr Skelly asserts, was that he wished to put to Mr Parks his instruction that his client sought an extension of settlement from six weeks to seven weeks from the date of finance and that settlement be effected in Brisbane.  Mr Parks concedes those matters were discussed.
  1. On 31 August 2009, and after the conversation to which I have just referred, Sanderson & Parks wrote a letter to Purcell Chadwick & Skelly in the following terms:

“In this matter we refer to the telephone discussion of this instant between Mr Rick Parks of our office and your Mr Graham Skelly.

 

We advise that we have now taken our client’s instructions in the matter extending settlement date under the Contract from six weeks from the date of finance to seven weeks from the date of finance and further, effecting settlement in Brisbane as opposed to Biloela. 

 

We advise that our client is agreeable to those variations to the Contract occurring and we look forward to receiving in due course, for execution by our clients, the Deed of Variation covering the abovementioned matters.”

  1. It can be seen that there was no mention of the GST variation in respect of which Mr Parks had noted matters would need to be “clarified”.
  1. On 1 September 2009, Purcell Chadwick & Skelly wrote to Sanderson & Parks stating:

“In reliance upon the advice contained in your letter dated 31 August 2009 that your clients have instructed that they are prepared to execute a Deed of Variation of the Contract in the manner set forth in your letter, our client Benson and Burnside Holdings Pty Ltd has elected to waive the finance condition contained in Clause 3.1 of the Agreement.”

  1. Subsequently, on 10 September 2009, Purcell Chadwick & Skelly forwarded to Sanderson & Parks a draft Deed of Variation. The covering letter stated:

“Attached for your consideration for yourself and your clients is a draft Deed of Variation to record the variation of the agreement recently discussed.

 

Please let us know if the terms of the deed are satisfactory and we will arrange to submit execution copies.”

 

Again there was no mention of any GST variation.

  1. The draft Deed of Variation contained three operative clauses. Clause 2 was entitled “Variation” and stated:

“The parties agree that from the date of this Deed the Contract is varied as set out in the Schedule.  Where there is any discrepancy or inconsistency between the provisions of the Contract and this Deed, the provisions of this Deed shall prevail.”

  1. The schedule referred to in clause 2 contained alterations to the date of settlement and the place of settlement, consistently with the correspondence that had preceded it. It made no reference to the GST provision in Clause 1.2(m). However Clause 3 of the Deed of Variation, headed “GST”, provided:

“(a)If GST is levied or imposed on or in respect of any supply made under or in accordance with this Deed, then the consideration for that supply is to be increased by the rate at which GST is levied or imposed. …”

  1. On 1 October 2009 Sanderson & Parks wrote to Purcell Chadwick & Skelly advising that they had been in touch with their client and that “she advised that she is happy with the draft Deed of Variation. We ask that you please forward to us the original for execution by our client”.
  1. As matters transpired, the draft Deed of Variation was never forwarded to Sanderson & Parks for execution. It was never signed by any of the parties. The reason for that was that on 20 October 2009 Purcell Chadwick & Skelly wrote to Sanderson & Parks terminating the contract as their client was entitled to do for failing to obtain satisfactory finance under Clause 3.3 of the Agreement. That termination was accepted by Sanderson & Parks.
  1. However, the contract contained a peculiar clause. Effectively, the defendants had the right to “re-enliven” the Agreement and did so on 26 October 2009 when they were able to obtain an alternative source of finance. That right to re-enliven the agreement was contained in Clause 12.2 of the written Agreement of 18 August 2009 and provided:

“In that event [ie. the re-enlivenment] the provisions of Clauses 2, 6 and 7 of this agreement shall revive and be of full force and effect save that the date for completion will be that day which is 28 days after notice is given under this clause.”

  1. Thus under the clause, the day for completion became 23 November 2009.
  1. Settlement took place on that day in Brisbane.  The first instalment of the purchase price was paid without any additional payment for GST.  A consent caveat was provided by the second defendant as required under the agreement.  The defendants’ solicitors sought a “tax invoice” for the price payable under the agreement.
  1. Those then are the salient facts. I turn to the arguments.

Was There an Agreed Variation?

  1. The allegation in paragraph 7 of the Amended Statement of Claim to the effect that a variation to the contract was agreed in the solicitors’ conversation of 31 August or contained in the Deed of Variation cannot be sustained.
  1. The pleading at paragraph 7 of the Amended Statement of Claim, which alleges that there was an oral agreement reached in the conversation of 31 August 2009, is simply wrong. Mr Parks’ version, if accepted, does not establish such an agreement but merely that each side would go back to their clients, clarify the matter and, perhaps, make further contact if needed.
  1. There are two difficulties with the argument that the Deed affected a variation. First, it is quite evident that the parties intended that any variation be effected by Deed executed by the parties. That was probably a legal requirement there being no consideration moving from the first defendant so as to bind it to such altered arrangements in the absence of a Deed. I was informed from the bar table that that is how Mr Skelly saw the matter and that is why he proffered the Deed.
  1. The relevant principles were explained in Masters v Cameron (1954) 91 CLR 353 at 360 per Dixon CJ, McTiernan and Kitto JJ:

“Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes.  It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect.  Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend a departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document.  Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

 

In each of the first two cases there is a binding contact: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution.  Of these two cases the first is the more common.  Throughout the decisions on this branch of the law the proposition is insisted upon which Lord Blackburn expressed in Rossiter v Miller when he said that the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared, embodying the terms, which shall be signed by the parties does not, by itself, show that they continue merely in negotiation.  His Lordship proceeded: “…as soon as the fact is established of the final mutual assent of the parties so that those who draw up the formal agreement have not the power to vary the terms already settled, I think the contract is completed.”

 

 

Cases of the third class are fundamentally different.  They are cases in which the terms of agreement are not intended to have, and therefore do not have, any binding affect of their own… The parties may have so provided… simply because they wish to reserve to themselves a right to withdraw at any time until the formal document is signed.”

  1. Here it seems evident that the intention of both parties was that there be no agreement to vary the existing contract unless and until the Deed of Variation was executed by both parties. The parties had left it up to their solicitors to make effective the variation that they required. On the defendants’ side it was their solicitor’s view that each side had to execute a Deed to secure the defendants’ rights. From the plaintiff’s side there was that same expectation as evidenced by the email of 1 October 2009 where the plaintiff’s solicitors asked that the original of the Deed be forwarded “for execution by our client”. 
  1. There is a further issue and that is whether the Deed in fact brought about any variation in the GST arrangements. Mr O’Brien of counsel, who appeared for the defendants, submitted that it did not. He advanced two submissions. First, the variations that were intended to be effected were dealt with in Clause 2 of the Deed. One would expect that if there was to be variation of the contract price by the amount for which the plaintiff contends (roughly in the order of $190,000), that would be dealt with in the clause which expressly dealt with variations to the original agreement.
  1. Secondly, he pointed out that in Clause 3(a) of the Deed the reference to GST is in relation to “any supply made under or in accordance with this Deed” – not under or in accordance with the original agreement. Hence as a matter of construction it made no sense to construe the Deed as the plaintiff would need to, in order to succeed.
  1. Mr Clutterbuck, who appeared for the plaintiff, argued that the reference to a “supply made under or in accordance with this Deed” should be read as the supply under the Agreement. He did so relying on Clause 1.2(g) of the original agreement (which deals with “Interpretation”) which provides: “A reference to any agreement or document is to that agreement or document as amended, novated, supplemented, varied or replaced from time to time, except to the extent prohibited by this Agreement”.
  1. Mr O’Brien contended that the initial reference to “agreement or document” in Clause 1.2(g) was to be contrasted with the reference to “Agreement” (capitalised) which appears at the end of the paragraph. Thus Clause 1.2(g), on that interpretation, merely intended to refer to agreements or documents referred to in the body of the “Agreement” and not to the actual written agreement of 18 August 2009.
  1. Throughout the written agreement where there is a reference to the agreement itself the word appears as capitalised. Mr O’Brien’s submission accords with the apparent intent of the parties. Thus there is no automatic incorporation of the Deed in the terms of the agreement.
  1. That leaves the question of why Clause 3 was put into the Deed of Variation and what effect it was supposed to have. The supply that was made related to the supply of the land and the shares in the first defendant. That is not dealt with in the Deed. The Deed itself does not seem to deal with the supply of anything but rather to an alteration of a legal right. Mr O’Brien struggled to identify what the supply might be for the purposes of the GST legislation. The explanation for it might be that the clause was inserted as a precaution.
  1. However it seems inescapable to me that by its terms the Deed in clause 3 does not refer to the written agreement of 18 August 2009 and it seems to me it should not be construed in that way.  The failure to include any alteration to the GST provision in Clause 2 speaks strongly against an assumption that the Deed was intended to vary that provision in the contract.  The restriction of the GST clause to supplies made under the Deed reinforces that view. 
  1. The Deed of Variation submitted on 10 September 2009 did not affect such a variation both because it did not say so and because it was not signed by the parties thereby adopting it. Thereafter the agreement was brought to an end. The need for the Deed to be executed in order to be effective was not made any the less necessary by the subsequent re-enlivenment of the agreement.

Sufficient Acts of Part Performance

  1. Mr O’Brien contended that there was a further problem facing the plaintiff’s case.
  1. Section 59 of the Property Law Act 1974 (Qld) provides:

“No action may be bought upon any contract for the sale or other disposition of land or any interest in land unless the contract upon which such action is brought, or some memorandum or note of the contract, is in writing, and signed by the party to be charged, or by some person by the party lawfully authorised.”

  1. Here, the variation that the plaintiff seeks to impose on the defendants was to add to the purchase price a substantial sum – as I have said, in the order of $190,000. Mr Clutterbuck did not disagree with the proposition that if a party is to be charged with a substantial variation to the purchase price in relation to the sale of land then that variation needs to be in writing, or note of it in writing, and “signed by the party to be charged”. That is so because it is a material term: see Tweddell v Henderson [1975] 2 All ER 1096.
  1. It is common ground that there was no execution of the Deed of Variation by the defendants. Nor can it be said that the solicitor was “lawfully authorised” to alter the contract on their behalf. It is well established that in the absence of express authority a solicitor engaged to simply complete a contract for sale of land on behalf of a party does not have authority (including ostensible authority) to agree to a variation of the contract: Nowrani Pty Ltd v Brown [1989] 2 Qd R 582 at 586. 
  1. In any case there was no signing of the Deed of Variation by the solicitor and their correspondence made clear that they were submitting a draft for consideration and no more.
  1. In the absence of writing, any contract for the sale of land is unenforceable unless there are sufficient acts of part performance.
  1. In Regent v Millett (1976) 10 ALR 496, Gibbs J explained the relevant principles that apply:

“The principle on which the doctrine of part performance rests was stated by Lord Cranworth, Lord Chancellor in Caton v Caton (1866) LR 1 Ch App 137 at 148 in words which appear to have a direct application to the present case.  He said: ‘…when one of two contracting parties has been induced, or allowed by the other, to alter his position on the faith of the contract, as for instance by taking possession of land, and expending money and building or other like acts, there would be a fraud in the other party to set up the legal invalidity of the contract on the faith of which he induced, or allowed, the person contracting with him to act, and expend his money.’ ”

  1. In Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, Brennan J said at 432:

“In order that acts may be relied on as part performance of an unwritten contract, they must be done under the terms and by the force of that contract and there must be unequivocally and in their nature referable to some contract to the general nature of that alleged.”

  1. Those passages set out the principles that have long been acted upon in relation to the application of the doctrine.
  1. Here, the dispute between the parties is not whether or not they had a contract for the sale of land – they both agree that they did – but rather whether that contract was on terms that the defendants would pay any applicable GST over and above the contract price or whether the price stated in the contract reflected their whole liability.
  1. If one interprets the plaintiff’s pleading at paragraph 10 as asserting that there was a sufficient act of part performance to evidence the contract for which the plaintiff contends – and I am by no means sure that that was the intention of the paragraph – and that the act in question was the settlement of the contract on 23 November 2009, then the plea cannot succeed.
  1. That is so because all that the settlement of the transaction evidenced was the fact of an agreement to sell land and, if anything, to sell land on the basis for which the defendants contend, not for which the plaintiff contends. The price tendered on the day of settlement was not the price originally agreed plus the GST in addition, but rather simply the price originally agreed. All that the settlement does is to reinforce the defendants’ position, not the position of the plaintiff. In my view it is not even equivocal.
  1. Hence, even if one accepted, contrary to my view, that the true intent of the Deed was to affect a change in the GST arrangements between the parties, s 59 of the Property Law Act required that the change be put into writing and signed by the person to be charged and that did not occur. There is no act of part performance that can avail the plaintiff so as to circumvent the statute.  Even at its highest for the plaintiff it cannot succeed on the argument that the contract was varied as it wants to assert, as that varied contract cannot be enforced.

Estoppel

  1. The final ground upon which Mr Clutterbuck advanced the plaintiff’s cause was that there was an estoppel of the type discussed in Waltons Stores (Interstate) Ltd v Maher.[1]  That plea is contained in paragraph 10(b) of the Amended Statement of Claim. 
  1. Mason CJ and Wilson J concluded in Waltons Stores at 406:

“The foregoing review of the doctrine of promissory estoppel indicates that the doctrine extends to the enforcement of voluntary promises on the footing that a departure from the basic assumptions underlying the transaction between the parties must be unconscionable. As failure to fulfil a promise does not of itself amount to unconscionable conduct, mere reliance on an executory promise to do something, resulting in the promisee changing his position or suffering detriment, does not bring promissory estoppel into play. Something more would be required. Humphreys Estate suggests that this may be found, if at all, in the creation or encouragement by the party estopped in the other party of an assumption that a contract will come into existence or a promise will be performed and that the other party relied on that assumption to his detriment to the knowledge of the first party.”

  1. Brennan J expressed his views in the following passage, which is to like effect:

In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.”[2]

  1. The difficulty for the plaintiff in the application of the doctrine to the facts here lies in the absence of a promise, in the formulation of Mason CJ and Wilson J, or in the absence of the factors that Brennan J identified as numbered (2) and (4) in his summary. It is incumbent on the plaintiff to show that the defendant induced the plaintiff to adopt an expectation and that the defendant knew or intended that the plaintiff act on that expectation.
  1. The only act of the defendant that the plaintiff can point to is the providing of the Deed of Variation by the defendants’ solicitor. The matters that I have already discussed show that it could not be construed as a promise. At its highest the Deed was equivocal, although it would take a generous approach to interpreting the Deed to reach that view.
  1. Nor is there any evidence that the defendant did anything to encourage any belief in the plaintiff that the contract price had changed. Quite to the contrary – the first defendant tendered settlement in accordance with the agreement unaltered. In the normal course one would expect that so significant a change as the addition of $190,000 to the purchase price would be accompanied by a very clear statement of intent. There was no such statement here.

Is Summary Judgment Appropriate?

  1. The application for summary judgment is brought pursuant to UCPR r 293 which provides that:

“(1) A defendant may, at any time after filing a notice of intention to defend, apply to the court... for judgment against a plaintiff.

(2) If the court is satisfied

(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and

(b) there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”

  1. In Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259 Holmes J (with whom Davies JA and Mullins J agreed) said at 264-5:

“The more appropriate inquiry is in terms of the Rule itself: that is whether there exists a real, as opposed to a fanciful, prospect of success. However, it remains, without doubt, the case that:

‘Great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case.’” (citations omitted)

  1. That view of the rule has been reinforced in subsequent decisions of the Court of Appeal: see Bolton Properties P/L v J K Investments (Australia) P/L [2009] QCA 135 per Holmes JA and Daubney J, with Chesterman JA dissenting.
  1. In Gray v Morris [2004] 2 Qd R 118, McMurdo J (with whom McPherson JA agreed) said at 133:

“... rr 292 and 293 should be applied by reference to their clear and unambiguous language, without a need for any paraphrase or comparison with a previous rule. But in the application of the plain words ... and in particular the consideration of whether there is a need for a trial, a court must keep in mind why the interests of justice usually require the issues to be investigated at a trial. In my view it surely remains the case, as Mason, Murphy, Wilson, Deane and Dawson JJ said in Fancourt ... that ‘The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried’.”

  1. I have considered whether, despite my own views, it would be inappropriate to give summary judgment because of the complexity of the matters involved or because of the possibility that there might be other evidence that could impact on the approach that one might take to interpretation of the Deed or the contract.
  1. Despite the more cautious approach to the application of the rule that Chesterman JA has espoused, at least in theory, he has pointed out:

“It follows that where the facts are settled and the respective rights of the parties turn upon questions of law UCPR r 292 would require the court to give judgment in advance of trial, even where the point is difficult. This conclusion involves the departure from the practice under the former rules as to summary judgment as explained in Theseus Exploration NL v Foyster (1972) 126 CLR 507 and Sunbird Plaza Pty Ltd v Boheto Pty Ltd [1983] 1 Qd R 248. To that extent UCPR r 292 may have brought about change.”[3]

  1. In the second of the decisions that Chesterman J referred to, Sunbird Plaza Pty Ltd v Boheto Pty Ltd, McPherson J suggested that delay should, where possible, be avoided:

“Difficult questions of law frequently arise in matters before the judge sitting in Supreme Court Chambers. There is authority for saying that in such instances the judge has a discretion which he may properly exercise by declining to determine such matters of law in Chambers for reasons such as pressure of work, the complexity of the issues involved, or the quality (or lack of it) of the submissions presented by counsel. But to require that a judge should invariably refrain from determining what are said to be difficult questions of law in Chambers, even though he may be ready, willing and able to undertake the task, is to deprive him of the discretion which the Rules unquestionably confer upon him in relation to such matters. The only likely result of this form of enforced judicial inertia is the kind of lengthy and unnecessary delay that is traditionally identified with a denial of justice.”[4]

  1. Here, the only matters upon which the parties are apart are the content of the conversation between the solicitors and the construction of the Deed. They are agreed as to the documents and letters that were exchanged and the contents of those documents. It was indicated that if there was to be a trial the only evidence that would be called would be from the two solicitors as to the terms of their conversation. The conversation between the solicitors does not materially affect the dealings between the parties, even on Mr Parks’ version.
  1. Further if one brought into account extraneous matters – such as the failure to refer in correspondence to the claimed agreement to vary the GST arrangements – which I have ignored in the foregoing analysis, the strength of the plaintiff’s position is not improved but weakened.
  1. I see no reason to delay decision.
  1. I have reached the view that the two requirements of the rule have been met. The plaintiff has no real prospect of success and I see no need for a trial of the claim.
  1. There will be judgment for the defendants against the plaintiff with costs.

Footnotes

[1] (1988) 164 CLR 387; [1988] HCA 7.

[2] (1988) 164 CLR 387 at 428-429.

[3] Bolton Properties P/L v J K Investments (Australia) P/L [2009] QCA 135 at [26].

[4] [1983] 1 Qd R 248 at 255.

Close

Editorial Notes

  • Published Case Name:

    In the Future Holdings P/L as Trustee for the Norma Jean Semple Trust v Benson and Burnside Holdings P/L & Anor

  • Shortened Case Name:

    In the Future Holdings Pty Ltd v Benson and Burnside Holdings Pty Ltd

  • MNC:

    [2010] QSC 471

  • Court:

    QSC

  • Judge(s):

    McMeekin J

  • Date:

    16 Dec 2010

Litigation History

No Litigation History

Appeal Status

No Status