Britton v Storey[2025] QCA 127

[2025] QCA 127

COURT OF APPEAL

BRADLEY JA

Appeal No 3008 of 2025

SC No 10922 of 2024

MICHELLE SUSAN BRITTON First Appellant/First Applicant

ANDREW JOHN BRITTON Second Appellant/Second Applicant

v

JOSHUA MARC STOREY First Respondent

SAMANTHA RUTH ERSKINE STOREY Second Respondent

BRISBANE

THURSDAY, 17 JULY 2025

JUDGMENT

BRADLEY JA:  This is an application for a stay of the further enforcement of an order made by Justice Freeburn.  The order was made on 25 June 2025.  Shortly before that, on 23 June 2025, his Honour published reasons for the order that a contract for the sale of land be specifically performed.  The order and the reasons followed a hearing in the trial division over three days in early June 2025.  On 11 July 2025, the appellants filed a notice of appeal.  At about the same time, one of the appellants filed an application for a stay of the order.  At the hearing today, both of the appellants adopted that application and made submissions in support of it.

Their submissions dealt with three topics.  Firstly, whether there was an arguable case on appeal.  It seems to be, effectively, conceded by the respondents that there is an arguable case, at least in respect of one of the grounds on which his Honour found that the contract ought to be specifically performed.  That ground is to do with an alleged waiver of an admitted breach of the contract. This ground is arid, as the appellants’ election to affirm the contract cures any earlier default.

In addition to the oral submissions, the applicants set out in their application some matters relating to the stay, and for completeness, I will deal with those matters as well.  However, in the oral submissions for the applicants, it was said that the balance of convenience favours a stay.  The applicants contend that they would lose their house, unless there is a stay, and that no prejudice would be suffered by the respondents if a stay is granted.  The applicants also submitted that they would suffer irremediable harm if the stay were not granted.

The second appellant, Mr Britton, also submitted that an appeal would be pointless if a stay was not granted because the appellants’ poor credit rating and general financial position meant that they would not be able to obtain finance to repurchase the house if they were successful on appeal.  I will deal with these, and the written arguments, at the same time.

In writing, the first appellant said that the property contained irreplaceable family items and children’s possessions and memories, the loss of which cannot be compensated by damages.  No oral submission was made about this, but that is not to say that the appellants resiled from it.  On the material before the Court, it does not appear that the order of the Court requires the appellants to transfer any chattels to the respondents, other than those that, in accordance with the agreement, they agreed to sell.

In the written submissions, the first appellant described the order as a “forced sale”.  To be clear, it is not.  The order obliges the appellants to perform a promise that they made when they made the contract with the respondents in January 2024.  The first appellant also said in writing that they would be affected by a change in the market conditions between when they made the contract to sell the property and the time when the contract would be specifically performed in accordance with the order.

Any positive change in the market conditions between January 2024 and now cannot, in any sensible meaning, result in the submission that the first appellant puts, which is that it would amount to a financial catastrophe.  Enforcement of the order merely requires the appellants to transfer the title for the agreed price.  Changes in the market value of the property since the contract was entered into are no basis for a stay.  It was also said in the written submissions that the appellants were at risk of losing another property if the order was not stayed.  As I understood the oral submissions, the appellants now contend that they are in the process of selling the other property by way of an arrangement that is acceptable to their bank.

In the written material, and in some oral submissions, the first appellant made reference to her personal medical condition.  I appreciate that being involved in litigation over a property that was once a family home is inevitably stressful and difficult.  That stress and difficulty is in no way assisted by the fact that the appellants are now acting for themselves. It is certainly the case that the personal medical condition of the appellant, and any disability with which she might live, will not be altered by the operation of the order or by it being stayed pending the hearing and determination of the appeal.

I mentioned the increase in the value of the property over the period.  For the appellants, it is contended that the property will now be worth about 4.1 to 4.5 million dollars, and the sale price was about $3 million about 18 months ago.  The increase in value of the property over the period in which the appellants have failed to perform their obligations under the contract with the respondents was a matter that ought have been an obvious possibility when the appellants agreed to sell the property to the respondents at a fixed price in January 2024.

As Mr Favell, for the respondents, identified, generally speaking, the court should not be disposed to delay the enforcement of court orders.  Orders made by Judges should not be treated as merely provisional.  The successful party after a trial in the court is ordinarily entitled to the fruits of the judgment.

The appellants’ third oral contention was that there would be no prejudice suffered by the respondents if the order was stayed.  On the material before the Court, and that identified by Mr Favell, the position seems to be as follows.  The respondents have been in possession of the property since early 2024.  Their right to do so, according to the judgment, arises from the same group of contractual instruments as their right to specific performance.  Although the appellants, or one of them, has previously made allegations and, indeed, threats to have the respondents evicted from the property, it seems that those actions have not persisted.

The parties are natural persons.  They were to settle the transfer of the property in about August last year.  That is about 11 months ago.  The appellants failed to settle.  They have been in breach of the contract since at least that time.  The respondents commenced the proceedings promptly.  The order that the appellants specifically perform was made, as I mentioned, on 25 June 2025 after a trial and after publication of reasons that explained why the orders would be made.  The order required the appellants to settle the contract within 14 days.  It follows that they have been in breach of the Court’s order since at least 8 July 2025.

It was drawn to the Court’s attention that the first appellant is a solicitor and, therefore, an officer of the court.  In most respects, this is not of great significance for the present issues.

The property has been the home of the respondents for about 18 months.  In that time, the appellants have lived in another city.  The respondents have paid a deposit totalling $326,400.  The appellants have had access to those funds since they were paid in the course of 2024.

The appellants would be paid the balance of the purchase price that was agreed, less any adjustments, if they perform as the order requires.  Most of that balance, on the material before the Court today, would be applied to discharge a mortgage to the ANZ bank that is presently over the title to the property.  The financial position of the appellants is not known with complete certainty.  It is known that the ANZ bank issued a notice under section 84 of the Property Law Act 1974 (Qld) before the trial was held, on the basis that the appellants were in default of the loan arrangements they had with the ANZ.  In the written submissions, the appellant submitted that she was at risk of losing the property, and the other property where she and the second appellant currently live.

In the course of the hearing this afternoon, the first appellant relied on some passages in an unsworn affidavit that she had prepared.  In them, she stated that on Wednesday, that is, yesterday, she spoke to a person at the ANZ bank and was told that there is no current foreclosure action, and that her file is not with litigation currently.  She stated in that paragraph that she has been making payments to the loan accounts where possible.  She also says that the file has not exited the financial hardship team, which she says precludes it from any litigation or foreclosure, as this team provides immunity from such action while in hardship.  She says that she simply needs to keep the bank updated.  In the meantime, she is inquiring about changing the security on one of the loans to their home on the Gold Coast, if required, to prevent the bank taking further action in respect of the property the subject of the order.

The concern on the part of the respondents has been expressed in this way: that if specific performance is further delayed, the respondents will lose the opportunity to obtain the property for which they bargained and contracted, and in which they have lived as a family for 18 months.  If the stay is not granted and the contract is performed, the appellants’ indebtedness to the ANZ will reduce by an amount a little less than 3 million dollars.  The respondents will charge the property with the sum that they will borrow from their bank to pay the balance of the purchase price.

If the appeal succeeds, then the appellants may recover the property from the respondents by repaying the purchase price that the respondents will have paid.  I expect that amount should be close to the sum that the respondents had borrowed to finance the purchase.  For the appellants, it is said that this cannot occur because the state of their credit rating is such that a bank will not lend them the money to repurchase the house.  This is a contention that is, to a degree, speculative.  It depends upon the view that a lender would take, which will obviously be based upon the ability of the appellants to service a loan and the security that they can offer for it.

If the property is worth $4.5 million, and if it is only necessary to borrow $3 million to buy it, there may be some appeal in that transaction for a bank with an appropriate appetite for risk.  However, if what the appellants say from the Bar table is correct, which is that no one will lend them the money to repay the amount that they would have received from the respondents, then they will not recover the house.

If the stay is granted, then there does seem to be a distinct possibility that the appellants will find themselves in a position where the bank will require repayment of the loan and that will put at risk their continued ownership of the property.  If that were to occur, the submission put for the respondents is that they will have no prospect of recovering the deposit that they have paid of $326,000, and they will have no chance of obtaining a credit in that amount towards the purchase of this or any other property.  They will, therefore, lose what has been their family home for the past 18 months, and they will lose the deposit.

It is not certain that this would occur, but balancing the risk that it would occur against the risk that the appellants would not be able to obtain finance to repurchase the house at what they say would be a very considerable discount to its true value, I consider that the prejudice that would accrue to the respondents outweighs that that the appellants fear that they will suffer.

The appellants bear the onus of showing that this is an appropriate case for a stay.  It seems to me, on balance, it is not.  So the order of the Court will be that the application filed on 11 July 2025 is dismissed.

Is there anything else?

MR FAVELL:  Your Honour, the respondents would seek their costs of the application on a standard basis.

BRADLEY JA:  Mr Britton or Mrs Britton, is there anything you want to say about costs?

SECOND APPLICANT:  Your Honour, again, it is not my place, I do not really know, but we would not be here today if it were not for an unclear contract.  We have got parties that would not agree to come to an arrangement to not have it litigated.  In fact, my wife put it to Mr Moore to have an undertaking to not have this stay application come here today, to which he rejected and sent a threat to her saying that she will be charged, threateningly, as a solicitor.  So I certainly do not agree with any costs application.  We have tried not to be here today and not to have this application before the Court.  That is all I have, your Honour.

BRADLEY JA:  Do you – did you make an offer about resolving the stay question?

SECOND APPLICANT:  Your Honour, yes.  My wife has made multiple offers to the Storeys or buyer.  Mr Moore ‑ ‑ ‑

BRADLEY JA:  But about the stay application?

SECOND APPLICANT:  Yes.  I believe that ‑ ‑ ‑

BRADLEY JA:  Do you know ‑ ‑ ‑

SECOND APPLICANT:  ‑ ‑ ‑ was the case.

BRADLEY JA:  ‑ ‑ ‑ is the offer in writing?

SECOND APPLICANT:  Yes, your Honour, I believe there was some ‑ ‑ ‑

BRADLEY JA:  Do you want to tender a copy?

SECOND APPLICANT:  Some email.  I – unfortunately, due to the current circumstances, I am not going to be able to produce that to you.  As you can see, my wife is quite upset, and – yeah.  I cannot really do anything further in that regard.

BRADLEY JA:  All right.  Thanks.  Is there anything you want to say in reply, Mr Favell?

MR FAVELL:  Your Honour, there was a mention of an offer.  I am instructed that an offer was made, but it is not before the Court, but, in any event, it was an offer that assumed ‑ ‑ ‑

BRADLEY JA:  Well, perhaps if it is not before the Court ‑ ‑ ‑

MR FAVELL:  Yes.

BRADLEY JA:  ‑ ‑ ‑ you should not give evidence about it.

MR FAVELL:  Yes.  That is so, your Honour.  We simply say costs follow the event, and it is appropriate that we get our costs of the application.

BRADLEY JA:  All right.  I will order that the appellants pay the respondents’ costs of the application.  Is there anything further?

FIRST APPLICANT:  Just that there was some factual errors in even the decision just then.  Yes.

BRADLEY JA:  Right.  Adjourn the Court, please.^[1]