Willis & Anor v Brimin Gem Pty Ltd
[2006] QDC 296
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- Unreported Judgment
- Willis & Anor v Brimin Gem Pty Ltd[2006] QDC 296
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Willis & Anor v Brimin Gem Pty Ltd[2006] QDC 296
Willis & Anor v Brimin Gem Pty Ltd[2006] QDC 296
DISTRICT COURT OF QUEENSLAND
CITATION: | Wil lis & Anor v Brimin Gem Pty Ltd [2006] QDC 296 |
PARTIES: | NARELLE DENISE WILLIS and PAUL ANTHONY WILLIS Plaintiffs v brimin gem Pty Ltd ACN 056 330 333 Defendant |
FILE NO/S: | 176/05 |
PROCEEDING: | Applications |
DELIVERED ON: | 24 March 2006 |
DELIVERED AT: | Southport |
HEARING DATE: | 6 February 2006 |
JUDGE: | Newton DCJ |
ORDER: | Leave granted to withdraw admissions Application for summary judgment dismissed |
CATCHWORDS: | PRACTICE - WITHDRAWAL OF ADMISSIONS PRACTICE - SUMMARY JUDGMENT Uniform Civil Procedure Rules 1999 Rule 188 Cases cited: Cassie v Bodgan & Anor [2004] QSC 275 Cropper v Smith (1884) 26 Ch D 700 MNM Developments Pty Ltd v Gerrard [2005] QCA 230Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292 |
COUNSEL: | Mr J Dearn for the plaintiffs Mr L Jurth for the defendant |
SOLICITORS: | Peter Crawford Lawyers for the plaintiffs Short Punch & Greatorix for the defendant |
- [1]There are two applications before the Court:
- (a)an application by the plaintiffs for summary judgment; and
- (b)an application by the defendant for leave to withdraw admissions made in the defence.
- [2]The applications came before me on 6 February 2006 at which time it was agreed that the defendant’s application should be determined first, as the summary judgment application would stand or fall in the light of the decision, with respect to whether or not leave should be granted to withdraw admissions.
- [3]Rule 188 of the Uniform Civil Procedure Rules 1999 provides that a party may withdraw an admission made in a pleading only with the Court’s leave. An admission may not be withdrawn merely for the asking and subject to payment for costs. A clear explanation on oath is required as to how and why the admission came to be made and detailed particulars given of the issues to be raised at trial if the admission is withdrawn. (See Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292 per Williams J at para 32).
- [4]Because the defendant’s material was deficient in that no clear explanation on oath as required had been provided, the matter was adjourned to a date to be fixed and the defendant given 14 days to serve additional affidavit material.
The defendant was ordered to pay the plaintiff’s costs. A further affidavit of John Edmund McComb, the sole director and secretary of the defendant, was filed on 2 March 2006 to remedy the deficiency.
- [5]The background to these applications may be shortly stated. The parties entered into written agreement dated 21 July 2004 for the sale of certain land by the plaintiffs to the defendant for the purchase price of $1,220,000.00. The contract (in special condition 5) required the defendant to pay a deposit of $120,000.00 by three non-refundable payments. In accordance with special condition 5 the defendant paid the first payment of $5,000.00 on 21 July 2004. The second payment of $55,000.00 was paid by the defendant on 5 August 2004, one day later than required by special condition 5. The defendant failed to pay the third payment of $60,000.00 which was required to be paid by 21 January 2005. The plaintiffs elected to terminate the contract with the defendant. On 23 February 2005 the plaintiffs entered into a further contract to sell the land for a purchase price of $1,130,000.00. The plaintiffs have now claimed from the defendant damages for breach of contract together with interest and costs.
- [6]The defence as originally pleaded contained implied admissions in respect of a valid contract having been entered into (paragraphs 2-7), payments made under a valid contract (paragraphs 4, 5) and in respect of valid termination (paragraph 6). The defence also contained admissions in respect of breach (paragraph 6) and that the property was situated in the parish of Gilston (paragraph 1(a)). The latter is of little importance to the present applications, there being an obvious typographical error in the description of the correct parish in the statement of claim.
- [7]The defendant is a property developer with holdings in Victoria and on the Gold Coast. In January 2005 it was decided by Mr McComb to shift his attention from the Gold Coast back to the property market in Victoria and accordingly, he began to reduce the defendant’s holdings of property in Queensland and consolidate its Victorian holdings.
- [8]Mr McComb deposes to having sought, on behalf of the defendant, on 21 January 2005, legal advice from the defendant’s solicitor in relation to avoiding the contract of 21 July 2004 with the plaintiffs. According to Mr McComb:
“I received oral advice that, although difficult to assess, the contractual documents appeared valid in that they appeared validly executed and included a warning statement pursuant to the provisions of the Property Agents and Motor Dealers Act 2000.
I received further oral advice that a formal advice in relation to the formation of the contract would require further investigation which would involve further costs, potentially also including counsel’s fees. I was not inclined to incur those further costs.
I received further oral advice that if the third deposit instalment under the contract was not paid, the following options would be open to the vendors:
a) Sue for specific performance of the contract; or
b) Terminate the contract and sue for any loss on resale.”
- [9]The market value of the subject property, in Mr McComb’s opinion, was between $1.25 million and $1.5 million. He therefore considered that the property could have been easily resold for at least $1.22 million, being the purchase price under the contract. He believed, therefore, that the plaintiffs would not suffer any loss or damage in the event that the contract was avoided, and consequently, that he would not be liable for damages for avoiding the contract.
- [10]It was on this basis, claims Mr McComb, that he decided not to pay the third deposit instalment and not complete the contract “on commercial grounds”. He instructed the defendant’s solicitors to contest the allegations in the statement of claim only in respect of his belief that the plaintiffs ought not to have suffered any loss or damage had they competently conducted the resale. This, it was said, was done with a view to saving costs.
- [11]If leave be granted to withdraw the implied admissions that the agreement was or remained valid and binding, the amended defence will allege that:
- (a)the acceptance by the plaintiffs of the defendant’s offer in respect of the agreement was withdrawn; or
- (b)alternatively, the plaintiffs repudiated the agreement; and
- (c)in any event, the agreement was in breach of s 366 of the Property Agents and Motor Dealers Act 2000,
with the result that there either was no enforceable agreement between the
parties, or the defendant was entitled to terminate any concluded agreement.
- [12]The proposed amendments to the defence would provide a complete answer to the plaintiffs’ claim. This must be regarded as an important consideration in the circumstances surrounding the application. (Cassie v Bodgan & Anor [2004] QSC 275 at [19]).
- [13]The defendant seeks to rely upon the decision of the Court of Appeal in MNM Developments Pty Ltd v Gerrard [2005] QCA 230 where some form of physical joinder of a warning statement to a contract was held to be necessary in order to give effect to the consumer protection objects of the Property Agents and Motor Dealers Act 2000. That protection was said by de Jersey CJ to extend “in cases like these, to giving a purchaser a right to terminate even for quite technical contraventions, and whether or not the purchaser has suffered any material disadvantage.” (para [16]).
- [14]To ensure a fair trial in this matter by allowing a determination to be made in accordance with the rights of the parties, it is necessary to allow the withdrawal of the admissions (Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292 at [31] per Williams J (as he then was) citing Cropper v Smith (1884) 26 Ch D 700 at 710 per Bowen (J). Accordingly, I give leave to the defendant to withdraw the admissions made in the original defence in paragraphs (2)-(7), (4) and (5), and (6).
- [15]In my view the defendant should bear the costs thrown away with respect to the application for leave to withdraw admissions on an indemnity basis. I am unable to accept the contention made on behalf of the defendant that the application was always a futility.
- [16]The application by the plaintiffs for summary judgment must be dismissed. The defendant is to pay the plaintiffs’ costs of and incidental to this application on an indemnity basis.