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Petersen v Corby[2013] QDC 211

DISTRICT COURT OF QUEENSLAND

CITATION:

Petersen & Anor v Corby [2013] QDC 211

PARTIES:

Tanya Gay Petersen

(first plaintiff/applicant)

And

Stephen Heath Petersen

(second plaintiff/applicant)

v

Gregory Thomas Corby

(defendant/respondent)

FILE NO/S:

Toowoomba No 36 of 2012

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

18 September 2013

DELIVERED AT:

Brisbane 

HEARING DATE:

20 May 2013

JUDGE:

Devereaux SC DCJ

ORDER:

  1. The application is dismissed;
  2. Costs are reserved;

The court directs that:

  1. the defendant deliver a list of documents by 27 September 2013;
  2. each party provide copies of any requested documents, or permit inspection of documents by 4 October 2013;
  3. the plaintiff file any amended statement of claim by 11 October 2013;
  4. the defendant file any amended defence by 18 October 2013;
  5. the plaintiff file any reply by 25 October 2013;
  6. the parties are to file any application in the proceeding by 8 November 2013 for the earliest available hearing date, and any such application must, in addition to any other relief, seek directions for the future conduct of the proceeding;
  7. in the event that there is no application in the proceeding filed as contemplated by order 8, the plaintiffs are to serve on the defendant a completed and signed request for trial date by 15 November 2013;
  8. the defendant is to sign and return the request for trial date served upon him under order 9 by 22 November 2013, or file by that date an application seeking directions for the future conduct of the proceeding; and
  9. if the defendant does not sign and return the request for trial date, or file an application, in accordance with order 10, the requirement for the defendant’s signature is dispensed with, and the plaintiff is to file the request for trial date by 26 November 2013.

CATCHWORDS:

CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – where claim arose from an uncompleted contract for the sale of house and land near Toowoomba – where there was a dispute on the pleadings as to the contract settlement date and the date for delivery of vacant possession – where despite extensions of settlement date buyer does not complete – where buyer purports to terminate for sellers’ failure to deliver vacant possession – where sellers claim damages for breach of contract – where sellers applied for judgment on their claim pursuant to rule 292 Uniform Civil Procedure Rules 1999 – whether at trial the defendant will have no reasonable prospect of successfully defending the claim – where possible issues for adjudication at trial include contract settlement date and the date for delivery of vacant possession – whether judgment can be given without the need for a trial

Uniform Civil Procedure Rules 1999 (Qld), r 166, r 292

RB Lease Pty Ltd v Heron [2013] QCA 181

Thornton v Bassett [1975] VR 407

Tropical Traders Ltd v Goonan (1963-1964) 111 CLR 41

COUNSEL:

P Travis for the plaintiff/applicant

No appearance for the defendant/respondent

SOLICITORS:

Aden lawyers for the plaintiff/applicant

No appearance for the defendant/respondent

  1. [1]
    The plaintiffs have applied for judgment on their claim without a trial, under r. 292 of the Uniform Civil Procedure Rules 1999. Subrule 292(2) provides:

If the court is satisfied that—

  1. (a)
    the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and
  1. (b)
    there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.

  1. [2]
    The plaintiffs submit the defendant has no real prospect of successfully defending the claim because the material facts are admitted in the pleadings, or deemed admitted or uncontested, and admitting of no defence.
  1. [3]
    The defendant was not present at the hearing of the application and filed no material in response to it. He was served by post at the address for service on the notice of intention to defend.
  1. [4]
    The claim arises from an uncompleted contract for the sale of house and land by the plaintiffs to the defendant. The property is a 2.68 hectare allotment at Mt Kynoch, just outside Toowoomba. The proceeding was commenced in the Toowoomba registry.
  1. [5]
    The parties entered into the contract on 7 September 2011. Originally, the plaintiffs pleaded that the contract was partly written and partly oral, the written part being in the eighth edition of the REIQ contract and the oral part being the defendant’s agreement to waive his right to vacant possession until November 2011. In the amended statement of claim the case was put as a wholly written agreement and it is pleaded the defendant consented to the plaintiffs not vacating for two or three weeks after settlement. The particulars relevant to the allegation were unchanged in the amended statement of claim.
  1. [6]
    Some relevant terms of the written agreement were that the finance and inspection dates were ‘14 days from contract date’ and the settlement date was 17 October 2011. The type-written date, ‘10th’ has a line through it and ‘17th’ is hand-written above it.
  1. [7]
    Clause 5.1 provided that settlement must occur between 9am and 5pm on the settlement date and that settlement must take place at the office of a solicitor or financial institution nominated by the seller unless otherwise agreed.
  1. [8]
    Clause 5.5 provided that on settlement date, in exchange for the purchase price, ‘the seller must give the buyer vacant possession of the land’.
  1. [9]
    Clause 6.1 provided that time was of the essence, ‘except regarding any agreement between the parties on a time of day for settlement.’
  1. [10]
    The pleaded particulars of the defendant’s waiver of the right to vacant possession on the date of settlement, contained in paragraph 4 of the statement of claim, were that on the afternoon of 7 September 2011, at the office of the real estate agent, the defendant told two persons from the agency that he was buying the property for his son; that he and his son had leasing obligations until early November 2011; that he would not be needing vacant possession at the time of settlement and that the agents should tell the sellers they could have two or three weeks to get their possessions out of the property after settlement. By paragraph 4 of the defence, the defendant ‘does not admit to paragraph 4’ of the statement of claim.
  1. [11]
    The solicitors for the plaintiffs in this proceeding did not act for the plaintiffs in the contract. That was the firm, Greenhow & Yeates. Mitry Lawyers, the solicitors who acted for the defendant in the contract, and who corresponded on the defendant’s behalf with the Greenhow & Yeates until about 12 December 2012 - when they wrote advising the defendant was in hospital and they ‘no longer act in this matter’ - were a firm whose address was in Macquarie Street, Sydney. They have never been on the record in this proceeding. The notice of intention to defend and the defence, both filed on 2 August 2012, bear contact details and address for service only of the defendant himself.
  1. [12]
    By paragraph 2 of the defence, the defendant denied the contract was partly in writing. The plaintiffs effectively adopted this denial by amending the statement of claim as I have already described.
  1. [13]
    The defendant next denies the settlement date was 17 October 2011 because,

‘The date was hand-written and not initialled. The defendant says that he did not consent to the amendment at the time he signed the contract.’[1]

  1. [14]
    The defendant refers, by way of particulars, to a letter sent to Greenhow & Yeates, on 25 October 2011. In the letter, which I will need to return to later, his solicitors wrote:

‘In conference with our client today he questioned the amendment by hand to the date of settlement on page 4 of the contract. The amendment was not there when our client signed the contract, and has not been initialled by anyone. We are instructed that discussions leading to exchange of contract were that settlement would be 2 or possibly 3 weeks after the 10 October 2011. We are instructed that that was on the basis of your client advising our client that they could not give vacant possession until early November 2011.’

  1. [15]
    The defendant paid the deposit on about 16 September 2011. On 26 September 2011, Mitry Lawyers wrote advising that the defendant waived an inspection condition and that finance had been approved.
  1. [16]
    The plaintiffs plead the defendant first breached the contract by failing to settle on 17 October 2011. The correspondence attached to the plaintiffs’ (present) solicitor’s affidavit includes an email from Greenhow & Yeates to Mitry Lawyers on 12 October which includes:

‘I have had the Transfer signed but am not confident that I can get it back to you in time for you to send it back to Toowoomba for settlement on Monday. Have you appointed a local Agent as yet that I can send it to direct?

I have booked the settlement to take place at our office at 3.00 p.m. on 17/10/11. Please advice if that time is not suitable.’

  1. [17]
    A reply came by email on 13 October stating no local agent had been appointed but one would be shortly; a Toowoomba Council search had not been received yet and, ‘At this point I don’t believe settlement will be possible at 3:00pm on 17/10/11. Would it be possible to reschedule for a time later in the week?’
  1. [18]
    About twenty minutes later, Greenhow & Yeates replied relevantly, ‘I’ll have to get my clients’ instructions regarding the extension. What date do you need the extension to?’
  1. [19]
    Later on the same day, Mitry Lawyers emailed informing Greenhow & Yeates the Toowoomba Regional Council said it would take five business days to return the council rates and asking ‘Would your client be willing to settle the property on Monday 24 October?’
  1. [20]
    On 14 October 2011, Greenhow & Yeates wrote to Mitry Lawyers advising the plaintiffs were ‘agreeable to extending the date for settlement to 21 October 2011. Time is to remain of the essence.’
  1. [21]
    The settlement date, 17 October 2011 passed.
  1. [22]
    Greenhow & Yeates sent a Settlement Statement on 20 October with an email asking Mitry lawyers to advise whether they agreed with the calculations and with the time (for settlement) nominated.
  1. [23]
    There was, apparently, no reply. On 21 October, Greenhow & Yeates sent by facsimile a letter to Mitry Lawyers repeating time was of the essence and advising the plaintiffs were ready, willing and able to effect settlement and would be available until 5 pm. There was no reply that day.
  1. [24]
    Thus the second proposed settlement date passed.
  1. [25]
    A reply came on 25 October 2011. I have already quoted part of the letter. It continues:

‘We are instructed that our client will not settle without vacant possession. You say in your letter of 21 October 2011 that “our clients were ready willing and able to effect settlement in accordance with the terms of the Contract. Your client is in default.” If vacant possession is not available it is clearly your client who is in default.

Our client reserves his rights ….’

  1. [26]
    On the morning of 26 October 2011, Greenhow & Yeates wrote advising vacant possession would be available on Friday 28 October 2011 and that the amounts on cheques would need to be changed. They do not, expressly at any rate, purport to make time of the essence. Shortly before 5pm on the same day, they wrote again advising that, not having heard from Mitry Lawyers, settlement on 28 October was impossible because they could not give sufficient notice to the financier. Greenhow & Yeates nominated 31 October 2011 for settlement and sought a reply.
  1. [27]
    On 28 October 2011, Greenhow & Yeates wrote to Mitry Lawyers advising the property was now vacant and seeking urgent confirmation that the defendant would settle on 31 October 2011.
  1. [28]
    On 31 October 2011, Greenhow & Yeates sent by facsimile a letter to Mitry Lawyers enclosing a settlement statement and nominating 3pm at their office for settlement.
  1. [29]
    It would seem Mitry Lawyers replied on 31 October 2011 but it is not in the material before the court. There is no explanation for its absence but it is referred to in a long letter dated 1 November 2011. Greenhow & Yeates assert, ‘Then in your facsimile of the 31st October 2011 you have done nothing more than confirm the terms of the contract. Submissions made in your facsimile are facts that are contained in the contract.’
  1. [30]
    Greenhow & Yeates nominated 4 November 2011 for settlement.
  1. [31]
    On 3 November 2011, Greenhow & Yeates sent by facsimile a letter nominating 3pm at their office on 4 November 2011 as the time for settlement and enclosing a settlement statement.
  1. [32]
    On 4 November 2011, at 10.05 according to a note on the document, Greenhow & Yeates wrote by facsimile to Mitry Lawyers,

‘We have receive (sic) another nonsensical fax from you.

Please advise by return facsimile whether your client intends terminating this Contract or not. If not, what are his proposals in relation to settlement.’

  1. [33]
    It seems there was no reply until 7 November 2011. Mitry Lawyers sent a Notice of Termination of Contract which asserted default by the sellers under clause 5.5 of the contract.
  1. [34]
    On 8 November 2011, Greenhow & Yeates wrote to the real estate agency advising it had received the termination notice and did not accept the grounds for termination, and telling the real estate agency not to disburse the deposit money.
  1. [35]
    The claim and statement of claim were filed on 18 April 2012. After an order for susbstituted service was made, the notice of intention to defend and defence were filed on 2 August 2012. The plaintiffs filed a reply on 23 October 2012.
  1. [36]
    On 29 November 2012, prompted by Greenhow & Yeates, the real estate agent paid the deposit money into court. There was some correspondence between Greenhow & Yeates and Mitry Lawyers concerning disclosure until a letter written under UCPR r. 444 of 12 December 2012 produced the response that the defendant was in hospital and the firm was no longer instructed in the case.
  1. [37]
    The plaintiffs filed the amended statement of claim on 31 January 2013 and (although the defendant did not respond) an amended reply on 7 March 2013.
  1. [38]
    In view of this background it seems to me a number of factual issues arise which require adjudication at trial. These include:
  • What, if any, was the settlement date of the contract at the time the parties signed? Indeed, was there ever a completed contract?
  • When, with respect to the settlement date, were the plaintiffs to deliver vacant possession?

The contract settlement date

  1. [39]
    The letter from Mitry lawyers of 25 October 2011, referred to at paragraph 14 above, opens the question whether there was a binding contract for the sale and purchase of the land. If the contract date was 10 October 2011 when the defendant signed but was changed by the plaintiffs when they signed, the return of the amended contract to the defendant may have amounted to a counter offer which has not, apparently, ever been accepted. It is difficult to infer the defendant’s subsequent conduct amounted to an acceptance of the counter-offer.
  1. [40]
    The plaintiffs argue and, indeed, plead by way of reply, that certain actions of the defendant’s solicitors suggest he adopted 17 October 2011 as the settlement date. They point out that on 26 September 2011, Mitry Lawyers wrote advising the purchaser waived the inspection clause and finance had been approved; the correspondence of 13 October 2011 demonstrated the parties were of one mind on the settlement date; and the defendant raised no concern about 17 October 2011 as the settlement date until 25 October 2011. The plaintiffs also point to the defence, paragraph 8, where the defendant pleads the plaintiffs breached an essential term, clause 5.5 which required the seller to deliver vacant possession ‘on 17 October 2011’.
  1. [41]
    I am not prepared to find, as a fact, on this application, that the settlement date written on the contract at the time the parties signed it was 17 October 2011. There is no evidence from any person present at the signing as to how the date came to be amended from 10 to 17 October.
  1. [42]
    In any case, the conduct of both parties leading up to 17 October 2011 would seem to preclude either relying on failure of the other to perform under the contract on that date as giving a right to terminate.
  1. [43]
    If there was a contractual settlement date then time was of the essence. If it was 17 October 2011 the plaintiffs were open to an extension of time beyond that date. Mitry Lawyers asked for 24 October. Greenhow & Yeates responded with 21 October but Mitry Lawyers did not reply. It is not open to conclude the parties agreed on a new settlement date. But neither is it open to the plaintiffs to secure summary judgment based on a breach by failing to settle on 17 October 2011.
  1. [44]
    If there was no agreement as to settlement date, it may be that the parties were simply working towards a settlement at some stage in the future. The plaintiffs’ solicitor usually suggested the completion date. But there was no agreement and the plaintiffs did not, as I will refer to later, serve a notice to complete.

Vacant possession

  1. [45]
    As to the defendant’s agreement/consent for the plaintiffs not to vacate for two or three weeks after settlement,[2]there are two competing versions of the facts. The plaintiffs rely, for the purposes of demonstrating on this application that the facts are uncontested and there is no need for a trial, on deemed admissions. Paragraph 4 of the defence, in whole, reads,

‘The defendant does not admit to paragraph 4. The defendant says that contract was entirely in writing and should be read in its entirety.’

  1. [46]
    The plaintiffs submit the pleading offends UCPR r. 166(3) and (4) and so by r. 166(5) the allegations in paragraph 4 of the statement of claim are deemed to be admitted. Further, there being no reply to the amended statement of claim, which leaves the particulars unchanged but adds the allegation,

‘Also on the afternoon of 7 September 2011, the Defendant

  1. aa)
    consented to the plaintiff having two or three weeks beyond the settlement date to remove their possessions from the property;’

the plaintiffs submit the defendant is deemed to have admitted the allegation.

  1. [47]
    I am not prepared to proceed on the basis that the facts concerning the agreement or consent of the defendant to the plaintiffs’ not giving vacant possession at settlement are uncontested. By paragraph 4 of the defence and by incorporating, by way of particulars in paragraph 3, the letter of 25 October 2011, the defendant has put the matter in issue. There is no evidence before the court on this application from those who are said to have heard the undertaking. Nor, for that matter, is there evidence as to the date of settlement on the contract at the time it was signed.
  1. [48]
    Moreover, r. 292 of the UCPR requires consideration of whether, at trial, the defendant will have no reasonable prospect of defending the claim. The pleadings in this proceeding could well be amended before trial. Evidence from those directly involved is likely to reveal a clearer picture of the relevant events. The material before the court is almost wholly the annexure of the plaintiffs’ former solicitors’ correspondence. Much can be drawn from it but I cannot, on the current material, be sufficiently confident about what the outcome will be should the case go to trial.[3]

The next proposed settlement date: 21 October 2011

  1. [49]
    If 17 October were not controversial as the contract settlement date, the setting of 21 October by the plaintiffs’ solicitors - which was done in response to the request from Mitry Lawyers, was in writing and stipulated time was to remain of the essence - would properly have replaced the original settlement date.[4]Subject to the question of vacant possession, the defendant would have been in breach by failing to complete on that date.
  1. [50]
    At 21 October 2011, the plaintiffs were not able to deliver vacant possession. The defendant’s intimated position was that settlement, with vacant possession, would occur two or three weeks after 10 October 2011, that is, between 24 and 31 October 2011.
  1. [51]
    Given the two issues in controversy, I am not satisfied there can be judgment, without a trial, based on the defendant’s alleged failure to complete on 21 October 2011.

The alleged breach by the plaintiffs

  1. [52]
    I have recorded above that on 7 November 2011 the defendant purported to terminate, asserting default by the plaintiffs under clause 5.5 of the contract. If the plaintiffs breached the contract as Mitry Lawyers wrote on 25 October 2011, then the letter also indicates that the defendant affirmed the contract subject to a condition – that the plaintiffs deliver vacant possession at settlement. The plaintiffs took swift action in that regard such that vacant possession would be available from 28 October 2011. The plaintiffs fixed that date for settlement. The defendant did not reply before the plaintiff was forced to re-set settlement for 31 October 2011. Apparently Mitry Lawyers wrote but, again, the communication is not included in the materials. In the letter to Mitry Lawyers of 1 November 2011, Greenhow & Yeates wrote

‘We then received a non-sensical letter from you on 28th October 2011 confirming the terms of the contract that vacant possession must be available at the date of settlement. We had advised you previously that the house was in fact vacant.

We again sent a facsimile to you on the 31st October 2011 providing you with an amended Settlement Statement and requesting that settlement take place.

Then in your facsimile of the 31st October 2011 you have done nothing more than confirm the terms of the contract. Submissions made in your facsimile are facts that are contained in the contract.

We have booked settlement for Friday the 4th November 2011.’

  1. [53]
    The defendant did not reply. Greenhow & Yeates sent a settlement statement on 3 November 2011. Their facsimile letter to Mitry Lawyers on 4 November 2011 includes, ‘We have received another nonsensical fax from you.’
  1. [54]
    Even if the defendant’s case were otherwise made out, it would seem that, by 7 November 2011, it was too late for the defendant to exercise any right to terminate that might have arisen from the inability of the plaintiffs to deliver vacant possession at settlement on 17 October or, on the defendant’s case, 24 October 2011. Also, it would seem the defendant was not ready, willing and able to complete the contract on 17 October 2011.

Breach by defendant?

  1. [55]
    If there was a contract, whatever the date for completion, it may well be that that the defendant’s failure to complete on 28 October was in breach of the contract. Subject to a factual finding as to the contract settlement date in favour of the plaintiffs, a court may consider that each further extension of the settlement should be understood as conditional upon the defendant’s performance of settlement. Each re-setting of the settlement date, if it amounted to an election not to terminate because of the defendant’s most recent failure to complete, did not constitute an election to waive performance of the contract altogether.[5]But the letters from Greenhow & Yeates did not consistently expressly re-make time of the essence. The plaintiffs did not, apparently, serve a notice to complete on the defendant making time of the essence and stipulating consequences for failure to complete.
  1. [56]
    If the plaintiffs’ case were otherwise made out, I would think the defendant’s conduct - failing to settle, at least on and from 28 October 2011 when vacant possession was available, and serving, on 7 November 2011, the notice of termination of contract - confirmed the defendant’s intention no longer to be bound by the contract. Upon that analysis, the defendant’s conduct would have amounted to a wrongful repudiation of the contract.
  1. [57]
    There would remain, however, the difficulty of divining when, if ever, the plaintiffs accepted the repudiation and terminated the contract. There is no evidence of it in the materials except that one must, I suppose, take the filing of the claim in April 2012 as the acceptance of any wrongful repudiation.
  1. [58]
    Resolution of this application requires - more than the construction of a contact between the parties[6] - assessment of numerous developments and stutters in the course of a contract for the sale of land which ultimately failed.
  1. [59]
    In view of all of the above, I am not satisfied I can properly conclude the defendant has no real prospect of defending the claim nor that there is no need for a trial. The application must be dismissed.

Damages

  1. [60]
    The plaintiffs have not sold the property. They claim damages for costs of holding the property, capital loss from depreciation of the property, agent’s commissions lost in the failed sale and rental of another house while they rented and tried to sell the property the subject of the failed contract.
  1. [61]
    The capital loss is pleaded as the difference between the contract price and the (broadly) current value of the property. The plaintiffs also claim interest on the purchase price since 17 October 2011. Without having to decide, I doubt the validity of either claim. A seller’s damages, upon default by the buyer, ‘has been held to be the difference (if any) between the contract price of the property and the market value at the date of the breach and any loss that is not too remote.’[7]It might be that interest is payable upon that amount from the date of the breach.
  1. [62]
    These will be matters ultimately for a trial judge.

Footnotes

[1] Defence paragraph 3

[2] The legal nature of the undertaking has not been analysed in the plaintiffs’ submissions. It is pleaded, in the amended statement of claim, that the plaintiffs relied on the consent and promptly vacated when it was withdrawn. I take that to say it was an undertaking upon which the plaintiffs relied to their detriment and so the defendant is estopped from relying on the written essential term 5.5.

[3] RB Lease Pty Ltd v Heron [2013] QCA 181 at [21-25]

[4] Tropical Traders Ltd v Goonan (1963-1964) 111 CLR 41

[5] Thornton v Bassett [1975] VR 407

[6] Compare Willmot & Anor v McLeay & Anor [2013] QCA 84

[7] Land Contracts in Queensland Christensen et al. 3rd Edition Federation Press p 467 (my emphasis)

Close

Editorial Notes

  • Published Case Name:

    Petersen & Anor v Corby

  • Shortened Case Name:

    Petersen v Corby

  • MNC:

    [2013] QDC 211

  • Court:

    QDC

  • Judge(s):

    Devereaux DCJ

  • Date:

    18 Sep 2013

Appeal Status

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

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