Hookham Constructions Pty Ltd v Lindemann
[2012] QDC 142
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- Hookham Constructions Pty Ltd v Lindemann[2012] QDC 142
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Hookham Constructions Pty Ltd v Lindemann[2012] QDC 142
Hookham Constructions Pty Ltd v Lindemann[2012] QDC 142
[2012] QDC 142
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 558 of 2012
HOOKHAM CONSTRUCTIONS PTY LTD | Applicant |
and | |
RODNEY CHARLES LINDEMANN | Respondent |
BRISBANE
DATE 18/04/2012
ORDER
CATCHWORDS | Property Law Act 1974 s 59 Documents (signed note, a cheque and a receipt) read together to constitute a sufficient memorandum in writing of a contract for sale of land - plaintiff not granted specific performance in light of other relevant issues being raised |
HIS HONOUR: I order that the originating application be set down for hearing with oral evidence if necessary on 21-5-2012. I direct that by 27-4-2012, the respondent advise the applicant in writing of all circumstances relied on as reasons for specific performance being refused. Respondent's evidence-in-chief in affidavit form by 4-5-2012; applicant's evidence-in-chief in affidavit form by 11-5-2012. Liberty to apply; costs reserved.
The court has made the foregoing orders on an originating application seeking specific performance of an alleged contract of sale of a residential property in Moranbah, the respondent being the vendor and the applicant company purchaser. Mr Barlow, for the former, submitted that there's no sufficient memorandum of the alleged contract for purposes of section 59 of the Property Law Act 1974 and he sought that that issue be resolved today with his client at liberty to resist the application further, even if the section 59 point failed.
The documents available are a scribbled note which gives the defendant's name and fixed line and mobile telephone numbers and the address of 10 Lawrence Street. The remainder of the note is "$470,000, three months, home as is, 30/7/2011". Signatures of the respondent and one which appears to read "B Hookham" complete the document.
On the following day, Mrs Hookham appears to have given a cheque drawn on the account of Hookham Constructions Pty Ltd as trustee in the amount of $6,000. That cheque appears to identify the parties to the transaction as the applicant would have them. A receipt was obtained by Mrs Hookham, Mr Lindemann says in terms which she had already written out, awaiting his signature. The terms of the receipt are: "Received from Hookham Constructions the sum of six thousand dollars as deposit on sale of 10 Lawrence Street, Moranbah 4744 ($6,000) 31/07/11” (I assume that is the date)". Mr Lindemann's signature is there.
My reaction to those documents, which I think may be read together, although similar documents couldn't be, for a special reason, in Todrell Pty Ltd v. Finch (No 1) [2008] 1 Qd R 540, is that in principle they constitute a sufficient memorandum of a sale. Any missing details, in my opinion, can be supplied by resort to notions of reasonable times for taking actions being implied and the like.
The conclusion that the documents may be a sufficient memorandum is not sufficient to support a conclusion that there is a sufficient memorandum of the contract, if any, which the parties may have made. Notwithstanding Mr Wilson's attempts to argue that the respondent should sink or swim today, according to whether Mr Barlow succeeded or failed with his section 59 point, I think there inevitably are other issues which require a trial and he effectively acknowledged that. There is an issue, for example, as to whether what has occurred and can be proved comes within the first or second of the three categories recognised by the High Court in Masters v. Cameron (1954) 91 CLR 353 at 360 to 361.
I recall a somewhat similar matter (found to represent the “first category”)of South Coast Oils (Qld and NSW) Pty Ltd v Look Enterprises Pty Ltd [1988] 1 Qd R 680 in which a contract documented in a similar and even more disparate way was upheld. Part performance overcame deficiencies in the document as a memorandum of lease. One of the considerations there was that the individual protagonists standing behind the corporate parties were of the view that an agreement had been reached. Here there is contention between Mr Hookham and Mr Lindeman as to whether that's the case. The latter explains the banking of the cheque as something done because there was nothing else he, Mr Lindeman could do with it. The circumstances are ones in which a detailed form of contract in standard REIQ form was tendered to him. He refused to sign it. He also adduces evidence as relevant in his case that the sale price of $470,000 would be well below market value. An additional point he raises is that, from his point of view, all dealings were with "Bert Hookham" but he's never known a person of the name of the applicant's deponent, Hugh Charles Hookham. Mr Wilson asserted surprise at some of Mr Barlow's points, in particular this last one. They all contribute to an outcome in which making a specific performance decree today would be inappropriate. The trial can't be held today because those who might have to give evidence are not in Brisbane. Fortunately one can be held within a month or so.
All right. Thanks, everyone.
MR BARLOW: Thank you, your Honour.
MR WILSON: Thank you, your Honour.