Clark v T T Building Consultants Pty. Ltd.
[2005] QDC 58
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
- Clark v T T Building Consultants Pty. Ltd.[2005] QDC 58
- Add to List
Clark v T T Building Consultants Pty. Ltd.[2005] QDC 58
Clark v T T Building Consultants Pty. Ltd.[2005] QDC 58
DISTRICT COURT OF QUEENSLAND
CITATION: | Clark & Anor v T T Building Consultants Pty Ltd & Ors [2005] QDC 058 |
PARTIES: | PAUL ERNEST CLARK AND JEAN CLARK(Plaintiffs) AND T T BUILDING CONSULTANTS PTY LTD ACN 010167 076(First Defendant) AND STEVEN DOUGLAS LEECE(Second Defendant) AND WILLIAM ALFRED WILMOT AND JANETTE MERLE WILMOT(Third Defendant) |
FILE NO/S: | 104 of 2004 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 18 March 2005 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 4 March 2005 |
JUDGE: | Judge J.M. Robertson |
ORDER: |
|
CATCHWORDS: | Application to strike out parts of an amended defence pursuant to r 171(1)(a) Uniform Civil Procedure Rules, whether pleadings disclose no reasonable defence; whether defence properly pleads estoppel. Cases cited: Dey v Victorian Railways Commissioners (1948) 78 CLR 62 Heilbut Symons & Co v Buckleton [1930] AC 30 Leipner v McLean (1909) 8 CLR 306 Commonwealth v Verwayen (1990) 170 CLR 394 Walton Stores (Interstate) Ltd v Maher (1998) 164 CLR 387 Till v The Nominal Defendant [2000] 2 Qd R 676 Legislation: s 59 Property Law Act 1974 r 171 Uniform Civil Procedure Rules |
COUNSEL: | Mr G. Diehm (for the plaintiffs) Mr P. Canning (for the third defendants) |
SOLICITORS: | Butler McDermott & Egan (for the plaintiffs) Ferguson Cannon Solicitors (for the third defendants) |
- [1]The plaintiffs Mr and Mrs Clark have sued the three defendants for damages in negligence and/or contract.
- [2]The third defendants Mr and Mrs Wilmot entered into a contract with Mr and Mrs Clark for the sale of a property in Buderim on 15 July 2000. The contract was in the standard REIQ form and included a standard condition making the contract conditional upon the purchasers obtaining a building report on the property from an inspector on terms satisfactory to the purchasers. In their Statement of Claim, Mr and Mrs Clark allege that the first defendant was engaged by them to conduct the inspection, and it in turn employed Mr Leece, the second defendant, to carry out the actual inspection and report. Mr Leece’s first report disclosed a number of defects, and the plaintiffs allege that Mr and Mrs Wilmot then agreed to rectify a number of defects to avoid the plaintiffs terminating the contract. The pleading alleges that Mr and Mrs Wilmot subsequently informed the plaintiffs that the rectification work had been completed and Mr Leece undertook a second inspection and provided a second report. They say that in reliance upon this report, they proceeded to complete the contract. Subsequently, they assert that they discovered that the rectification work had not been properly completed, and other defects had not been mentioned by Mr Leece, as a result of which they have suffered loss and damage.
- [3]The Statement of Claim in paragraph 20 asserts that the agreement to rectify pleaded in paragraphs 9(c) and 10 of the pleading constituted a collateral contract between Mr and Mrs Clark and Mr and Mrs Wilmot.
- [4]The amended defence of Mr and Mrs Wilmot asserts that there was no collateral agreement between the parties. In the alternative, it pleads in paragraph 17 (c):
“… the alleged collateral contract:
(i)was a contract relating to an interest in land;
(ii)was not, or some memorandum or note thereof, in writing;
(iii)was not signed by the party to be charged or by some person by the party lawfully authorised;
(iv)in the premises, the alleged collateral contract fails to comply with Section 59 of the Property Law Act 1974 (Qld), the Plaintiff is not entitled to bring an action on the basis of the alleged collateral contract and the alleged collateral contract is unenforceable.”
- [5]Paragraph 19(f) makes a similar plea.
- [6]Paragraph 22 pleads estoppel.
- [7]The application before me by the plaintiff seeks an order that paragraphs 17(c), 19(f) and 22 of the amended defence be struck out on the basis that these paragraphs disclose no reasonable defence: r 171(1)(a) Uniform Civil Procedure Rules.
- [8]As the learned authors of Civil Procedure in Queensland note in their brief annotation to this rule, “the jurisdiction to strike out pleadings in a way which will summarily terminate proceedings will be sparingly exercised”. The third defendants rely upon a statement of Dixon J (as his Honour then was) in Dey v Victorian Railways Commissioners (1948) 78 CLR 62 at 91 however that statement seems to relate more to applications now made pursuant to r 171(d) and/or (e). The caution expressed by the learned authors of Civil Procedure in Queensland is echoed in many authorities dealing with issues of this kind under the old Rules, the wording of which has not changed greatly in r 171. The rationale for such caution is that at this stage all I have is the pleadings and it is only at trial that the facts will be determined, and applicable legal principles emerge.
The s 59 Point
- [9]The plaintiffs argue that s 59 of the Property Law Act 1974 could not, in any way, apply to the agreement to rectify defects which was collateral with the contract for sale of the house property. Mr Diehm referred me to Heilbut Symons & Co v Buckleton [1930] AC 30 at 37 where Lord Maulton said:
“It is evident, both on principle and on authority, that there may be a contract the consideration for which is the making of some other contract. “If you will make such and such a contract I will give you ₤100,” is in every sense of the word a complete legal contract. It is collateral to the main contract, but each has an independent existence and they do not differ in respect of their possessing to the full the character and status of a contract.”
- [10]In Leipner v McLean (1909) 8 CLR 306 it was held:
“… that it was a question for the jury whether the verbal promise to pay the money to a particular person was intended by the parties to be a term of the main agreement which was subsequently reduced to writing in which case the Statute would apply, or was part of a collateral agreement relating solely to the application of the money when advanced, and, therefore, not within the Statute.”
- [11]Mr Canning’s response was to refer to the need for caution on an application to strike out and to rely on the authorities to which I have earlier referred. He acknowledged that even if the plaintiffs are completely successful, his clients’ defence will still largely be in tact i.e. this is not a case in which a successful challenge to the pleadings will leave the third defendants without any defence at all. In relation to Leipner v Mclean, Mr Canning’s response was to point out that in that case, the High Court held that whether or not the verbal promise to pay was intended to be part of the main agreement which was required to be in writing or was part of a collateral agreement (and therefore not caught by the Statute of Frauds) was a question of fact for the jury. The problem with that submission is that it is not part of the third defendants’ case that the alleged collateral contract was intended by the parties to be a term of the contract for sale of land. Their case is that there was no collateral agreement or, if there was, it was a “contract relating to an interest in land” and caught by s 59. What is at least obvious on the pleadings is that both parties assert that the third defendants agreed to carry out rectification works. I cannot see how an alleged agreement to rectify defects (the term of which are in dispute) can in anyway be classified as a “contract for the sale or other disposition of land or any interest in land”. I am satisfied therefore that paragraphs 17(c) and 19(f) disclose no reasonable defence and should be struck out. It may be that the pleader intended to plead that the alleged collateral agreement was intended by the parties to be a term of the contract for the sale of the house, but this has not been achieved by these paragraphs and, in any event, is inconsistent with the rest of the pleading. I will however give the third defendants the opportunity to replead if they are so advised.
- [12]I have not been referred to any other Act which may impact on the question of whether or not an agreement to rectify defects in a building in this context is required to be in writing.
The Estoppel Point
- [13]Paragraph 22 of the amended defence of the third defendants is in these terms;
“The Plaintiffs:
(a)engaged and relied on the skill and judgement of the First and Second Defendants with respect to the matters claimed as against the Third Defendants;
(b)accepted the condition of the dwelling house and the rectification works on or before 19 September 2000;
(c)proceeded to effect settlement with the Third Defendants on or about 19 September 2000;
(d)accepted delivery up of possession from the Third Defendants of the dwelling house on or about 19 September 2000;
(e)have not allowed the Third Defendants or their agents back into possession of the dwelling house since 19 September 2000;
(f)have had responsibility for management and maintenance of the dwelling house since 19 September 2000;
(g)waived the benefit of Clause 4 of the standard Terms of Contract for Houses and Land attached to the Contract;
(h)elected not to terminate the Contract;
(i)in the premises of the foregoing, and as a consequence of the conduct, waiver and election alleged, the Plaintiffs are estopped from claiming as against the Third Defendants at law and in equity.”
- [14]Mr Diehm’s submission is a simple one. He refers to what is required to establish estoppel in cases such as Commonwealth v Verwayen (1990) 170 CLR 394, Walton Stores (Interstate) Ltd v Maher (1998) 164 CLR 387 at 413 and Till v The Nominal Defendant [2000] 2 Qd R 676 at 679 paragraphs 13 and 20. Mr Canning agrees that to establish an estoppel it is necessary to show that:
- (i)there has been representation (or conduct amounting to representation);
- (ii)reliance upon that statement or conduct, with the recipient acting to their detriment; and
- (iii)an element of unconscionability on the part of the representor who now seeks to depart from the state of affairs represented.
- [15]Mr Diehm submits that paragraph 22 does not amount to a plea of estoppel. I agree the paragraph should be struck out, but again I will permit the third defendants to replead if they so desire.
- [16]Orders of the Court:
- Paragraphs 17(c), 19(f) and 22 of the amended defence of the third defendants be struck out.
- The third defendants have leave to replead those paragraphs within twenty-one (21) days of today’s date.
- The third defendants to pay the plaintiffs’ costs of the application on the standard basis as assessed or agreed.