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Look Design and Development Pty Ltd v Nicholson[2023] QCATA 6

Look Design and Development Pty Ltd v Nicholson[2023] QCATA 6

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Look Design and Development Pty Ltd v Nicholson [2023] QCATA 6

PARTIES:

Look design and Development pty ltd t/as coast life homes

(Applicant)

v

Mark nicholson and simone nicholson

(Respondents)

APPLICATION NO/S:

APL089-21

ORIGINATING APPLICATION NO/S:

MCDO64/20 (Caloundra)

MATTER TYPE:

Appeals

DELIVERED ON:

17 February 2023

HEARING DATE:

26 July 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Forrest SC

ORDERS:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The Orders made on 2 March 2021 are set aside.
  4. The original application is otherwise dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – FROM QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – BY LEAVE OF TRIBUNAL – where the Applicant seeks to appeal a decision by a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute – where leave is granted

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE  – REPUDIATION – DELAY AND PROVISIONS AS TO TIME – whether the Applicant was entitled to be paid the balance of a deposit pursuant to a building contract – whether time was of the essence in the contract – whether the Applicant acted in a manner that was consistent with a belief, expectation or understanding that time was of the essence – where it is determined the Respondents are not required to pay that sum

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – DISCHARGE BY AGREEMENT – NOVATION – whether the Respondents are entitled to a refund of money paid on a preliminary agreement – whether the building contract novated the preliminary agreement – where it is determined the Applicant is entitled to keep that sum

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL – whether the Respondents are entitled to a refund of money paid on a preliminary agreement – whether retention of the sum by the Applicant amounted to unjust enrichment – where it is determined the Applicant is entitled to keep that sum

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 142(3)(a)(i) and (3)(b)

Pickering v McArthur [2005] QCA 294

Waltons Stores (Interstate) Ltd v Maher (1998) 164 CLR 387

APPEARANCES &

REPRESENTATION:

Applicant:

Mr B King, Solicitor, Butler McDermott Lawyers

Mr R Kay, Director, Look Design and Development Pty Ltd

Respondents:

Mr M Nicholson (self-represented)

Ms S Nicholson (self-represented)

REASONS FOR DECISION

  1. [1]
    This is an application for leave to appeal and, if granted, an appeal against the orders of a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute.
  2. [2]
    The dispute between the parties arises out of a contractual arrangement between them.

FACTUAL BACKGROUND

  1. [3]
    The Respondents had purchased a block of land in 2019 in the Sunshine Coast region. On 19 August 2019, the male Respondent signed a document called a “Preliminary Agreement” with the Applicant, with a view to him and his wife subsequently entering into a contract for the construction by the Applicant of a house on the block of land. A sum of $1,000 being a “preliminary agreement fee” was paid by the Respondents to the Applicant. That sum was to pay the Applicant to undertake preliminary works in preparation for building a house on the Respondents’ land, including assessment and preparation of preliminary drawings. By the terms of that Preliminary Agreement that sum of $1,000 was to be treated as part-payment of the amount that was to be paid under a subsequent building contract, if one was entered, but was to be “non-refundable” if no subsequent building contract was entered into. The evidence is supportive of a finding that some preliminary works were undertaken by the Applicant in presenting proposed drawings of plans to the Respondents.
  2. [4]
    On Saturday, 7 September 2019, the Respondents signed a building contract that provided for the Applicant to construct a house on their land for $201,250 inclusive of GST. They each signed the document at the end of its “Schedule 1 – Particulars of contract” and their signatures were each witnessed by Ms Morgan Bananno who was the authorised sales representative of the Applicant. The Respondents each initialled the foot of each page of the contract document, including pages that included the “General Conditions”.
  3. [5]
    On Monday, 9 September 2019, Mr Scott McDonald, who was authorised by the Applicant to do so, signed the contract on behalf of the Applicant. He, too, initialled the foot of each page of the contract.
  4. [6]
    By clause 4.2 of the General Conditions of the contract, the “owner” (the Respondents) was required to pay the Applicant “the deposit stated in Schedule 2”. By Schedule 2, that amount was fixed at $10,062.50. By clause 4.2, that deposit was required to be paid when the Respondents signed the contract. It was common ground that the Respondents did not pay the Applicant that amount when they signed the contract. There is no evidence about, what, if anything, was said about that at the time by anyone, save for the female Respondent’s affidavit evidence that she heard her husband say “this is subject to finance?” and a representative of the Applicant say “agreed.” That was accepted by the Tribunal Member as having occurred.
  5. [7]
    In any event, it was common ground that the contract also expressly stipulated that it was conditional on the Respondents obtaining finance. In Clause 6 of “Schedule 1 – Particulars of contract”, under Clause 5 “Finance” it said “Is the contract price subject to finance?  Yes”. However, Clause 6 –“Lending Details” had no details as to the lender from whom finance was being sought and no details of any specific amount of finance being sought.
  6. [8]
    Clause 7 of the General Conditions was headed “Finance and evidence of capacity to pay”. Under that heading, the following appeared:-

7.1  As soon as practicable after the date of this contract, the owner must give the builder evidence, to the builder’s satisfaction, of the owner’s capacity to pay the contract price by way of the progress payments and at the stages specified in Schedule 2.

7.2  Where the parties have nominated at item 5 for the contract to be subject to finance then:

  1. (a)
    this contract is conditional upon the owner within 10 working days from the date of this contract obtaining written approval from the lending body stated in item 6 for a loan in an amount sufficient to enable the owner to pay the contract price; [I note again that no lending body was specified in item 6]
  1. (b)
    the owner must apply to the lending body and use best endeavours to sign all documents and do all acts necessary to obtain loan approval;
  1. (c)
    the owner must within the time specified in Clause 7.2(a) give to the builder a notice stating whether the lending body has either approved or refused to approve the loan;
  1. (d)
    unless the owner notifies the builder that the lending body has refused to approve the loan, this contract will cease being conditional upon such approval, and
  1. (e)
    if the owner gives the builder a notice that the lending body has refused to approve the loan, then this contract will be at an end in which case all monies paid by the owner under this contract will be refunded except for the builder’s reasonable expenses.
  1. [9]
    The Respondents then applied for finance through a finance broker but experienced some delay. They were given notice by their broker on 25 September 2019 that a loan for $381,500 had been conditionally approved by a particular bank. It is common ground that the Respondents had not given notice to the Applicant about the progress of the finance application before 5 October 2019. That was well outside the 10 days provided for in Clause 7.2(a) set out in the General Conditions. The Applicant had not given any notice to the Respondents of a reliance on the provisions of Clause 7.2 either, or of an expectation that the Respondents should comply with its provisions.
  2. [10]
    On 5 October 2019, the Applicant’s sales representative sent an email to the female Respondent. It said, after pleasantries, “Just wanted to touch base and see how things were tracking on your end and flick you a little reminder that your deposit is due”. That, on the evidence, is the first time someone from the Applicant asked the Respondents to pay the deposit that was said in the contract to be payable on the signing of the contract, nearly a month before. Again, there was no reference to Clauses 4.2 or 7.2 that might cause the Respondents to consider they were in any way strictly bound now by the provisions of the written contract.
  3. [11]
    After receiving that, the female Respondent wrote an email back. She said “I have been following up with the broker and he the bank [sic] this week. Very frustrating how slow it is. I have forwarded your email onto [broker’s name] our broker so he knows it is not just me awaiting the go ahead. I hope to hear from him Tuesday as I asked him to follow up first thing. He is very good at doing the follow up when needed. We are eager to get the ball rolling asap. Just checking to see if the plans have been approved from council as yet?”.
  4. [12]
    Immediately thereafter, the Applicant’s sales representative emailed the female Respondent back and said “No worries. If it makes you feel better, everyone is in the same boat with the banks at the moment they are just taking forever. As you can imagine we don’t send anything off for building approvals until deposits are paid, so as soon as that is paid we will get things rolling on our end.” The reasonable implication from that is that the Respondents were being told that they could not expect anything to get started in terms of seeking approval for the plans until the deposit was paid and that the Respondent was still wanting that to be paid. Yet, no more formal demand for payment was made with any reference to time or with any suggestion that its payment was not also subject to finance.
  5. [13]
    On 9 October 2019, the Respondents received an email from their finance broker advising them that they had received formal approval for a loan of $381,500 from a bank. Soon after that on the same day, the female Respondent wrote an email to the Applicant’s sale representative. It said “Heard from the broker. Approval completed. Waiting on loan documents now to sign. Will keep you posted. It shouldn’t take long now”. The reasonable implication from this communication was that the Respondents were informing the Applicant that their application for finance had been approved and that they were expecting to proceed with the contract. 
  6. [14]
    On 16 October 2016, the female Respondent received an email from the Applicant’s sales representative attaching an invoice for the amount of $9,062.50 being the specified deposit less credit of $1,000 for the preliminary agreement fee already paid. It is common ground that none of that sum of $9,062.50 was paid by the Respondents then either. The clearly reasonable implication of that communication is that the Applicants was wanting the deposit to be paid but would give the Respondents credit for the $1,000 already paid on the signing of the Preliminary Agreement.
  7. [15]
    On a date in or around the middle of October 2019, the Respondents went together to a display home of the Applicant’s and spoke with the sales representative of the Applicant there. They had a conversation about finance in which the female Respondent, notwithstanding having already advised by email that approval was completed, said “We are unable to obtain sufficient finance. Valuations are low on the properties. We need full finance to pay the deposit and enough to complete the build. We will continue to seek finance options in the new year.” Interestingly, the Applicant’s sales representative simply replied “That is fine, just keep us in the loop.” That, it appears from the Tribunal Member’s decisions, was a crucial piece of evidence. It reinforced the Respondents’ belief, it seems to have been found, that they still had time to secure the finance they needed before being bound by the contract. 
  8. [16]
    There was then a conversation between Scott McDonald and one of the Respondents on or around 16 December 2019.  Mr McDonald rang the Respondents and they were on a holiday in Bali. The female Respondent gave unchallenged evidence that she told Mr McDonald that they “had obtained finance from St George, however, it was not enough to complete the build and cover the land … We would be seeking other options in the New Year. I have kept Morgan in the loop regarding this.”
  9. [17]
    She also gave unchallenged evidence that the Applicant’s representative, Mr McDonald, responded “I understand and acknowledge that you need to obtain full finance to pay the deposit. I understand that you have every intention of building and that you were very keen, but it was subject to obtaining finance.” The Tribunal Member accepted this evidence as an accurate depiction of the conversation.
  10. [18]
    On 24 February 2020, the female Respondent wrote by email to an officer of the ANZ Bank, from whom the Respondents were seeking a refinancing of an existing loan so that they would have enough funds to meet the contract price for the house construction. She sent a copy of that email to the Applicant. That prompted an email reply the next day from Scott McDonald of the Applicant in which he asked the Respondents “will you be requiring the refinance loan to process to then make payment of the 5% deposit or are you in a position to pay this now?” The reasonable implication from this email is that the Applicant still wanted the deposit paid but was acknowledging the possibility that the Respondents needed to borrow money to pay it.
  11. [19]
    On Saturday, 7 March 2020, the female Respondent wrote to Scott McDonald of the Applicant telling him “Just informing you that we have done all we can regarding finances and at this stage we have been unable to obtain a loan we require. As a result, we have decided to forego the build.” Clearly, the Respondents were telling the Applicant by this communication that they were not going to proceed with the contract as they could not, in the end, secure borrowings that would enable them to refinance their existing mortgage on the land and to pay for the build.
  12. [20]
    No doubt disappointed to be losing the contract, Scott McDonald wrote back to the female Respondent on Monday, 9 March 2020, saying:-

On review of your building contract I note that the finance clause expired several months ago and is not a valid reason to cancel the contract at this stage.

I have spoken with the Managing Director … and I must advise you that we are not in a position to release you from the building contract and as such intend to proceed on that basis.

With that in mind you are required to make payment of the balance of the 5% deposit ($9,062.50) immediately so that we may progress with the included works.

If payment has not been received by 4:30 pm Friday 13th March 2020 we may pursue recovery of this payment through more formal legal proceedings.

There is no doubt about the intent of this communication. The Applicant was telling the Respondents that they did not consider they had valid grounds to terminate the contract and expected them to pay the deposit (less the $1,000 they had already paid on signing the Preliminary Agreement) and to continue with the contract.

  1. [21]
    On 11 March 2020, the female Respondent emailed the Applicant advising that they had sought legal advice and that “obtaining finance was in the contract from the start”. She also advised that “finance was unable to be obtained”.
  2. [22]
    On 25 March 2020, the Applicant wrote to the Respondents notifying them that they were in breach of contract “because [they] have not paid the balance of the deposit, being $9,062.50”, giving them the chance to pay it within a further ten working days, in default of which the Applicant would give notice to end the contract. The Applicant also informed that it reserved its right to recover the 5% of the contract price as a debt, default interest and costs.
  3. [23]
    On 9 July 2020, the Applicant made an application to this Tribunal in its Minor Civil Dispute jurisdiction seeking payment of the sum of $9,062.50. A short while later, the Respondents filed a Response seeking dismissal of the Applicant’s claim and an order for the payment to them of the $1,000 they had paid to the Applicant as the preliminary agreement fee.

THE TRIBUNAL’S FIRST INSTANCE DECISION

  1. [24]
    Her Honour, Magistrate Tonkin, sitting as the Tribunal at first instance, heard and determined the matter and delivered her decision on 2 March 2021. Her Honour considered the matter turned on several questions. They were:-
    1. (i)
      Was time of the essence in the contract?
    2. (ii)
      If it was, did the Applicant by its behaviour invite the Respondents to believe that the Applicant had given them an extension of time for finance (including time for payment of the balance deposit), albeit with no specific date set for compliance, or put another way, can the Applicant, never having relied on its rights to adopt the clause 25 default procedure, and having appeared to waive any requirement of strict compliance both for payment of the deposit, and finance approval, now rely on breach by the Respondents to insist on forfeiture of the deposit?
    3. (iii)
      Are the Respondents bound by their having advised the Applicant that their finance had been approved, or are they entitled to qualify that with the assertion that the finance they had obtained was not sufficient for them to complete the contract, entitling them to a finding that they used their best endeavours to obtain finance from a variety of lenders, but without success and thus termination?
    4. (iv)
      Does the condition in the event of default not being the fault of the builder (Applicant), that the contract deposit of $10,062.50 shall be forfeited to the builder, constitute a penalty, so that the condition is not enforceable?
    5. (v)
      Are the Respondents not only not obliged to pay the balance deposit, but also entitled to a refund of $1,000 paid on the preliminary agreement?
  2. [25]
    Her Honour, pointing out that there was no express wording in the contract making time of the essence, nevertheless acknowledged that it has been authoritatively held that absent express statement, the subject matter of the contract or the surrounding circumstances may allow a finding in favour of the party seeking to insist that time was of the essence.[1] Here, it was the Applicants insisting that was the case. Her Honour found that neither the subject matter nor the surrounding circumstances of the contract warrant a finding that time was of the essence and she said she was not satisfied that it was in this case. Her Honour went on to say:-

If it was, the applicant has forfeited its right to rely on the failure to pay the deposit on time, and by its behaviour led the respondents to believe that they had almost unlimited time (or at least a reasonable time) to obtain finance, in the absence of which they retained the right to terminate, despite the terms of the contract.

  1. [26]
    Her Honour was satisfied on the evidence that the non-payment of the deposit by the Respondents by 9 September 2019 did not appear to be an issue with the Applicant. She referred to the evidence, which her Honour clearly accepted, that in mid-October 2019, Ms Bonanno for the Applicant when discussing finance with the female Respondent and being told they had not secured it yet, said “That is fine. Just keep us in the loop.” Her Honour went on to say:-

Conversations continued between the respondents and representatives of the applicant during which the respondents were, I find, led to believe that although payment of the deposit was desired by the applicant, the applicant was prepared to allow them more time to make that payment. I am satisfied that [the Respondents] relied on that and continued to canvass lenders for the amount of the finance they needed both for the build, and to refinance the borrowings they had incurred to acquire the land.

  1. [27]
    Her Honour then cited the High Court’s decision in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 as being authority for the proposition that a promisor cannot rely on a breach which the promisee was induced to believe would not be relied on, where the promisee has relied on that induced belief to its detriment, with the full knowledge of the promisor. Her Honour said she was satisfied that the Applicant induced the Respondents to believe that the Applicant was not insisting on strict adherence to the time frame set out in the building contract for finance to be obtained (the ten day period) and thus not intending to rely on its right in the event of a breach. Her Honour said she was further comforted in reaching her conclusion, by the fact that there was no strict insistence by the builder on payment of the whole of the deposit on the date of the contract signing. Her Honour said:-

By its conduct, the applicant had clearly waived its right to insist on adherence to the timeframes set out in the contract and was treating payment of the balance deposit as subject to finance. It was estopped by its own behaviour from relying on the breach by the respondents.

  1. [28]
    Her Honour found that the Respondents had used their best endeavours to obtain finance that was “sufficient to enable [them] to pay the contract price”. Though they had been approved $381,500 by one bank, that was insufficient to allow them to refinance the debt they already owed on the land they had purchased and to pay for the construction of the house. Accordingly, her Honour found that they were unable to satisfy the condition as to finance and that because they had been led to believe that they were entitled to treat the balance deposit as also subject to finance, they were entitled to terminate the contract and be refunded any deposit already paid.
  2. [29]
    Her Honour also found that the Applicant had treated the first $1,000 paid by the Respondents pursuant to the Preliminary Agreement as part-payment of the deposit, claiming only $9,062.50, which was $1,000 short of the 5% of the build price that the contract provided for as the measure of the deposit to be paid. Her Honour found that the building contract novated the Preliminary Agreement, thus extinguishing it and as that $1,000 was being treated as part of the deposit, the Respondents were entitled to receive that back when they notified the Applicant that they were unable to obtain finance sufficient to proceed with the build.
  3. [30]
    Her Honour dismissed the application, ordered the Applicant to pay $1,000 to the Respondents and that each party bear their own costs.

THE APPLICATION FOR LEAVE TO APPEAL AND THE APPEAL

  1. [31]
    Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[2] Leave to appeal is also required where an appeal is in relation to questions of fact and/or mixed fact and law.[3] Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[4]
  2. [32]
    For the Applicant, it is submitted: -
    1. (i)
      that there is a reasonably arguable case of error in the primary decision which, if corrected on appeal, would result in the Applicant obtaining substantive relief; and
    2. (ii)
      that the Applicant has been dealt a substantial injustice by reason of the errors within the decision, and that leave is necessary to correct that injustice. 
  3. [33]
    For the Applicant, it is submitted that five errors in the learned primary Tribunal Member’s reasoning sufficient to constitute the necessary error are identifiable, and that the substantive relief to be realised is $10,062.50, comprising of $9,062.50 to be paid by the Respondents and the retention of $1,000 already paid by them. It is submitted that denying the Applicant the benefit of that amount when it is said to be properly payable to the Applicant, is the substantial injustice to be corrected.
  4. [34]
    Firstly, for the Applicant, it is submitted that the Tribunal Member erred in fact by concluding that the Applicant’s conduct amounted to a waiver of the right to insist on compliance by the Respondents with their obligations pursuant to clause 7.2 of the contract. It is also submitted that the Member erred in law by concluding that conduct engaged in by the Applicant subsequent to the Finance Date was capable of modifying or otherwise affecting the operation of clause 7.2(d) of the contract and that the Member also erred by conflating a waiver of the Applicant’s right to terminate the contract for the Respondents’ breach of clause 4.2 with an extension of the time for compliance with clause 7.2. Fourthly, for the Applicant, it is submitted that the Member misconstrued the Finance Condition of the contract by construing the words “an amount sufficient to enable the owner to pay the contract price” as it appears in clause 7.2(a) to mean an amount sufficient to “both refinance and build”. Finally, for the Applicant, it is submitted that the Member erred in fact and law in finding that the Preliminary Agreement entered into by the parties in August 2019 was novated by the building contract.
  5. [35]
    As to the first three of the asserted grounds, I am satisfied that the Member’s decision was substantially centred around her finding that time was not of the essence in this particular contract. The contract did not expressly state that it was and, as her Honour pointed out, correctly in my view, neither the Respondents nor, more importantly, the Applicant acted in a manner that was consistent with a belief, expectation or understanding that time was of the essence. The uncontroverted evidence accepted by the Member was that before signing the contract, the Respondents asked and were assured by the Applicant that the contract was indeed subject to the Respondents being able to secure the finance to meet the costs of the build. There was no evidence that anything was said that would cause the Respondents to consider that was required to be within anything other than a reasonable period of time.  There was no insistence by the Applicant that the entirety of the deposit was to be paid on the signing of the contract such that might have put the Respondents on notice that strict compliance with clause 4.2 was expected. There was no evidence that the verbal assurance that the contract was “subject to finance” given by the Applicant to the Respondents was, in fact, subject to the far stricter regulatory provisions and time frame of clause 7.2 of the contract. 
  6. [36]
    In contrast, as her Honour found, correctly in my view, all the conduct of the Applicant (at least up until the point in time in March 2020 when the Respondents told them that they had been unable to obtain sufficient finance to go ahead with the building contract) was such to cause the Respondents to believe that they had “almost unlimited time (or at least a reasonable time)” to obtain sufficient finance to be able to go ahead with the contract, including as to paying the deposit. Her Honour was satisfied that the estoppel principle that was relied upon by the High Court in the Waltons Stores case applied and that the Respondents were, by the Applicant’s own conduct, induced into believing that the Applicant was not insisting on strict adherence to the time frames that were otherwise set out in the written contract, such that the Applicant could not then rely on the lack of strict adherence to those time frames giving rise to certain rights to terminate for alleged breach and for recovery of the amount of the deposit that had not been paid. I am satisfied that such a finding was reasonably open to her Honour.
  7. [37]
    That the clause 7.2 timeframe had not been strictly complied with, as is submitted for the Applicant, is clear. But it is not the case that the Applicant’s behaviour that caused the Respondents to act as they did, as found by her Honour, only started after those time frames had expired. Her Honour found on the evidence that the behaviour started from the outset, such as in the failure to insist on the payment of the deposit at execution of the contract, as provided for in the written contract, and a failure to insist, in writing, that the provisions of 7.2 still strictly applied. None of that reliance inducing behaviour can simply be ignored by the Applicant in retrospective preference for time frames expressed in writing in the contract simply because those time frames better suit the Applicant once the Respondents did not secure the necessary finance.
  8. [38]
    I respectfully reject the submissions for the Applicant as to the fourth ground relied upon, too. The Tribunal Member considered the simple proposition as to whether the Respondents had actually obtained finance sufficient to “enable” them to pay the contract price and found, in the circumstances of their need to refinance an existing mortgage debt as part of the borrowing process, that they had not been able to do that. Her Honour went as far as finding that the Applicant “behaved as if they accepted and understood” from the start that a refinancing was necessary, not just the borrowing of just enough funds to pay the price of the build specified in the contract. I am respectfully satisfied that those findings were open to her and that they do not amount to appealable error.
  9. [39]
    As for the final ground argued, that the Member erred in finding that the Preliminary Agreement entered into by the parties in August 2019 was novated by the building contract, this particular point is conceded for the Respondents. That is, in my view, an appropriate concession as her Honour did mistakenly find that the “building contract clearly provided for the first $1,000 to become part of the contract price”. The building contract did not refer to the Preliminary Agreement at all and the subject matter of the two contracts was distinct. The building contract did not novate the Preliminary Agreement.
  10. [40]
    However, for the Respondents it was still submitted that the retention by the Applicant of the sum of $1,000 amounted to an unjust enrichment of the Applicant. I respectfully do not accept that submission. The Preliminary Agreement was a separate contract. The sum of $1,000 was paid pursuant to that agreement by the Respondents for specified preliminary works to be provided by the Applicant. Only if the parties subsequently entered into a building contract would the Respondents gain the benefit, conferred by the Applicant, of being given credit for that $1,000 paid against the building contract price. There was no evidence that the Applicant did not undertake any of the preliminary works provided for in the Preliminary Agreement. On the contrary, as already observed, there is evidence supportive of a finding that it did. There was no total failure of consideration and no unjust enrichment of the Applicant by its retention of the sum of $1,000 paid by the Respondents. I am of the view that the Applicant was entitled to keep that sum.
  11. [41]
    In the circumstances, I consider the learned Tribunal Member did err in determining that the sum of $1,000 was repayable to the Respondents and that depriving the Applicant of this amount would do the Applicant an injustice. For these reasons alone, I give leave to appeal and determine this part of the appeal in the Applicant’s favour.
  12. [42]
    I will grant leave to appeal, allow the appeal, set aside the learned Tribunal Member’s Orders and simply otherwise dismiss the original application, leaving neither party with any obligation to pay the other party any money at the end of these proceedings.
  13. [43]
    I make the Orders set out at the commencement of these written reasons.

Footnotes

[1] Referencing the English decision of United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 cited with approval by Peter Lyons J of the Queensland Court of Appeal in Mango Boulevard Pty Ltd v Mio Art Pty Ltd [2013] QCA 271.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b).

[4] Pickering v McArthur [2005] QCA 294.

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Editorial Notes

  • Published Case Name:

    Look Design and Development Pty Ltd v Nicholson

  • Shortened Case Name:

    Look Design and Development Pty Ltd v Nicholson

  • MNC:

    [2023] QCATA 6

  • Court:

    QCATA

  • Judge(s):

    Judicial Member Forrest SC

  • Date:

    17 Feb 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Mango Boulevard Pty Ltd v Mio Art Pty Ltd [2013] QCA 271
1 citation
Jump To
Cite 1 - [2013] QCA 271
Pickering v McArthur [2005] QCA 294
2 citations
Jump To
Cite 1 - [2005] QCA 294
Cite 2 - [2005] QCA 294
United Scientific Holdings Ltd v Burnley Borough Council (1978) AC 904
1 citation
Jump To
Cite 1 - (1978) AC 904
Walton Stores (Interstate) Ltd v Maher (1998) 164 CLR 387
1 citation
Jump To
Cite 1 - (1998) 164 CLR 387
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
1 citation
Jump To
Cite 1 - (1988) 164 CLR 387

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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