Manguerra v Ayala
[2004] QDC 445
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Manguerra v Ayala[2004] QDC 445
- Add to List
Manguerra v Ayala[2004] QDC 445
Manguerra v Ayala[2004] QDC 445
DISTRICT COURT | No D2975 of 2003 |
CIVIL JURISDICTION
JUDGE ROBIN QC
GERARDO MANGUERRA and RIZA MANGUERRA | Plaintiffs |
and
RICARDO GARCIA AYALA and MERLYN CAYLAN AYALA | Defendants |
BRISBANE
..DATE 12/10/2004
JUDGMENT
HIS HONOUR: In my opinion, the claim is entitled to succeed essentially for the reasons covered in paragraphs 1 to 6 of Exhibit 21.
The contract for the sale of the subject property, in respect of which it seems to me time is not of the essence in any respect, for $107,000 ought to be specifically performed. It is a contract which is subject to finance and it will fail if the plaintiffs do not have finance arranged and available to complete by the 12th of November 2004.
For reasons similar to those I gave in Notley v Hunter [2004] QDC 108, I think that if the contract is completed it ought to be so with some compensation to the defendants for their late receipt of the purchase price, which was payable 13 months or so ago in what is probably still a rising market. It was the rising market over the preceding period which caused the defendants to repent of their bargain which, in my view, never truly was an option arrangement.
The defendants have borne costs in respect of the property while the plaintiffs continued in occupation without paying rent or having to find the purchase price. They paid rates and water charges levied by the Logan City Council as well.
...
HIS HONOUR: Declare that the contract for the sale by the defendants to the plaintiffs of the property referred to in the pleadings for $107,000 subject to finance should be specifically performed with compensation of $6,500 to the defendants for delay in completion.
...
HIS HONOUR: Completion is to occur on 19 November, 2004. The plaintiffs are to advise the defendants by 5 November, 2004, whether they have obtained finance (to permit the defendants to make arrangements for discharge of the mortgage), and independently to advise by 29 October, 2004 progress made by them in respect of obtaining finance.
The $6,500 compensation may be set off against costs payable by the defendants to the plaintiffs and becomes payable when the costs do.
...
HIS HONOUR: Order a rates adjustment as at the date of completion then.
...
HIS HONOUR: Declare that $3,495 of the purchase price is already paid by periodical payments of $50 or thereabouts.
Liberty to apply.
The defendants are to pay the plaintiffs' costs of the proceeding to be assessed.
-----