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Habi Pty. Ltd. v Global Group Enterprises Pty. Ltd.[2013] QDC 55

Habi Pty. Ltd. v Global Group Enterprises Pty. Ltd.[2013] QDC 55

DISTRICT COURT OF QUEENSLAND

CITATION:

Habi Pty Ltd v Global Group Enterprises Pty Ltd [2013] QDC 55

PARTIES:

HABI PTY LTD ACN 001345476

(Applicant / Plaintiff)

and

GLOBAL GROUP ENTERPRISES PTY LTD ACN 137875417

(Respondent / Defendant)

FILE NO/S:

4952 / 12

DIVISION:

Civil

PROCEEDING:

Hearing of an application

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

27 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2013

JUDGE:

R S Jones DCJ

ORDERS:

  1. The application for summary judgment is dismissed;
  2. I will hear from the parties as to costs.

CATCHWORDS:

CONTRACT FOR SALE OF LAND – Whether defendant in breach of contract for sale of land – whether breach constituted a repudiation by the defendants of its obligations under the contract – whether repudiation capable of acceptance by the plaintiff – whether time was of the essence of the contract.

PROCEEDURE – SUMMARY JUDGMENT – Rural 292 Uniform Civil Procedure Rules – whether the summary judgment should be entered before the plaintiff – application on the papers – where issues of credit is involved.

Uniform Civil Procedure Rules 1999 Rule 292

Deputy Commissioner of Taxation v Salcedo [2005] QDR 232

Foran v Wight (1989) 168 CLR 385

Hughes v Westpac Bank Inc [2010] QSC 274

Inness v Waterson as Trustee for the Cobok Family Trust [2006] QCA 155

J M Kelly (Project Builders) Pty Ltd v Toga Development No 31 Pty Ltd [2008] QSC 312

McPhee v Zarb [2002] QSC 4

Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119

Mirvac Queensland Pty Ltd v Horne [2009] QSC 269

Spencer v The Commonwealth [2010] HCA 28

Tarangau Game Fishing Charters Pty Ltd v Eagle Yachts Pty Ltd & Anor [2013] QSC 16

COUNSEL:

Mr M. M. Stewart SC for the applicant/plaintiff

Mr P. J. Roney SC for the respondent/defendant

SOLICITORS:

Russell Lawyers for the applicant/plaintiff

  1. [1]
    This proceeding was concerned with an application brought by the applicant for summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (UCPR) for the reasons given the orders of the Court are:
  1. The application for summary judgment is dismissed; and
  2. I will hear from the parties as to costs.

Background

  1. [2]
    On 6 November 2012, the applicant and the respondent entered into a contract for the sale of land described as Lot 124 on Crown Plan ML374 Parish Gladfield County of Merivale. Pursuant to the contract:
  • A purchase price of $1,125,000 was agreed upon as the purchase price; and
  • The applicant paid a deposit of $80,000 to Elders Rural Services Australia Ltd.
  1. [3]
    Settlement date for the contract was to be “within 14 days of finance approval”. Time was made the essence of the contract pursuant to cl 6.1 which provided:

“Time is of the essence of this contract, except regarding any agreement between the parties on a time of day for settlement.”

  1. [4]
    The sale was concerned with a rural property and a number of special conditions were included within the contract, including, identifying certain plant and equipment which was to be excluded from the sale and other plant and equipment which was included. Conditions requiring the vendor to transfer certain water and irrigation water licence and irrigation rights were also included.
  1. [5]
    Notwithstanding the fact that the contract required settlement within 14 days of “finance approval” that term was not defined. Clause 3 of the contract was concerned with the question of finance and provided:
  1. “3.Finance
  1. 3.1This contract is conditional on the buyer obtaining approval of a loan for the finance amount from the financier by the finance date on term satisfactory to the buyer. The buyer must take all reasonable steps to obtain approval.
  2. 3.2The buyer must give notice to the seller that:
  1. Approval has not been obtained by the finance date and the buyer terminates this contract; or
  2. The finance condition has either been satisfied or waved by the buyer;
  1. 3.3The seller may terminate this contract by notice to the buyer if notice is not given under cl 3.2 by 5.00 pm on the finance date. This is the seller’s only remedy for the buyers’ failure to give notice.
  2. 3.4The sellers right under cl 3.3 is subject to the buyers continuing right to give written notice to the seller of satisfaction, termination or waiver pursuant to cl 3.2”
  1. [6]
    The finance date prescribed was 21 days from the contract date, 6 November 2012. Clause 9 of the contract dealt with the issue of default on the part of the purchaser or vendor. Clause 9.1 provided:

“Seller and buyer may affirm or terminate

  1. Without limiting any other rite or remedy of the parties including those under this contract or any rite at common law, if the seller or buyer, as the case may be, fails to comply with an essential term, or makes a fundamental breach of an intermediate term, the seller (in the case of the buyers default) or the buyer (in the case of the sellers default) may affirm or terminate this contract.”
  1. [7]
    Pursuant to clause 9.5, in the event that the applicant was to terminate the contract under clause 9.1, it retained the right to recover the deposit money and any interest thereon.
  1. [8]
    In the applicant’s amended statement of claim it is relevantly pleaded:

“5. In breach of the contract the defendant failed to settle

  1. The breach pleaded… constituted a repudiation by the defendant of its obligations under the contract
  2. On 14 December 2012 the plaintiff accepted the defendant’s repudiation and elected to terminate the contract
  3. By reason of the matters pleaded…, pursuant to cl 2.4(1)(b) of the contract, the plaintiff is entitled to be refunded the deposit.
  4. Further, by reason of the defendant’s breach, the plaintiff has and will continue to suffer loss and damage, particulars whereof shall be provided prior to trial.”
  1. [9]
    Clause 2.4(1) of the contract provides:

“1. The party entitled to receive the deposit is:

  1. a)
    If this contract settles, the seller;
  2. b)
    If this contract is terminated without default by the buyer, the buyer; and
  3. c)
    If this contract is terminated owing to the buyer’s default, the seller.”
  1. [10]
    The abovementioned allegations are denied by the respondent. The respondent then pleads that it was at all material times ready, willing, and able to settle and took all reasonable steps to attend settlement. The respondent also pleads that it was in fact the applicant who was in breach of the contract and, by reason thereof, suffered loss and damage which is particularised in paragraph 5 of the counter claim.

The appropriate test

  1. [11]
    Pursuant to r 292(2) of the UCPR, a plaintiff may at any time after a defendant files its Notice of Intention to Defend, apply to the Court for judgment which may be granted provided that 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;

... .”

  1. [12]
    In Deputy Commissioner of Taxation v Salcedo[1]Williams JA (with McMurdo P and Atkinson J agreeing) said:

“…. Rule 292 and r 293 brought about significant changes in the law and procedure relating to summary judgment. The wording of r 292 and r 293 is clearly based on the drafting used in Part 24 of the Civil Procedure Rules (UK) …. In Swain v Hillman [2001] 1 All ER 91 the Court of Appeal had to consider r 24.2 the equivalent of r 292. Lord Woolf MR said at 92:

‘The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes fanciful prospects of success or… they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.’

Later, again speaking of the rule, he said at 94:

‘It saves expense; it achieves expeditions; it avoids the court’s resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail then it is in the claimant’s interest to know as soon as possible that that is the position. Likewise, if a claimant is bound to succeed, a claimant should know that as soon as possible.’

In his reasons at 95 Pill LJ accepted that the term ‘real’ was used in contour distinction to ‘fanciful’. The third member of the court, Judge LJ, whilst recognising that summary judgment was a ‘serious step’, went on to say at 96:

‘This is simple language, not susceptible to much elaboration, even forensically. If there is a real prospect of success, the discretion to give summary judgment does not arise merely because the court concludes its success is improbable.’”

  1. [13]
    In McPhee v Zarb[2]Wilson J, consistent with the observations of Williams JA in Salcedo, considered that the test under r 292, when compared to the previous test as to whether the defendant has raised a triable issue, required a more robust approach. That is, with respect, no doubt correct; however, it is equally well established that summary judgment should only be granted in the “clearest of cases”.
  1. [14]
    In Neumann Contractors Pty Ltd v Traspunt No. 5 Pty Ltd[3] Muir JA (with Holmes JA and Chesterman JA agreeing) relevantly said:

“The utilisation of rules such as r 292 is to be encouraged, but the replication must conform with ‘…the general principle… that issues raised in proceedings are to be determined in a summary way only in the clearest of cases’.

In Rich v CGU Insurance Ltd Gleeson CJ, McHugh and Gummow JJ cited with approval the following passage from the reasons of Gaudron, McHugh, Gummow and Hayne JJ and Agar v Hyde:

‘Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”’(emphasis added - footnote deleted)

  1. [15]
    In JM Kelly (Project Builders) Pty Ltd v Toga Development No. 31 Pty Ltd[4]Daubney J observed:

“… it remains a tenant of the Court’s approach to summary judgment applications that issues raised in proceedings will be determined summarily only in the clearest of cases.”

The Respondents Case

  1. [16]
    In the respondent’s defence and counterclaim it is pleaded:

“The defendant relies on the following facts in defence of the claim:

  1. The defendant admits the allegations in paragraphs 1, 2, 3 and 4a of the statement of claim.
  1. The defendant denies the allegations in paragraphs 4b and 4c and 5-9 of the statement of claim:

Reasons for Denial

  1. Under the Contract, settlement was due to take place within 14 days of finance approval, with finance approval required no later than 21 days from the contract date, the contract date namely 6 November 2012.
  2. The Plaintiff by its solicitor Emanate Legal stated that it required a release or approval from the trustee in bankruptcy of a previous owner of the land concerning certain items of personal property situated on the land.
  3. The Plaintiff failed to nominate a settlement date in accordance with the Contract, Clause 6.1.
  1. 4)
    The defendant was ready, willing, and able to settle and took all reasonable steps to attend to settlement including preparing a signed transfer in registrable form and obtaining a release of mortgage no 713019377.

Particulars

  1. The first mortgagee Mr Ross Roxo made arrangement to meet with the purchaser at the land with a view to satisfying the alleged concerns of the purchaser.
  2. The Plaintiff refused to meet with the first mortgagee and on the 12 December 2012, the Plaintiff attempted to vary the terms of the contract. The purchaser purportedly terminated the contract by serving notice on the vendor by letter dated 12 December 2012 (which letter was only mailed to the registered office 17 December 2012) some three days after the claimed termination of the Contract.
  1. 5)
    The Plaintiff is in breach of clause 5 and clause 7.2 of the Contract in that in the premises of paragraph 4 of this Defence, the Plaintiff was not entitled in fact or in law to terminate the Contract.
  1. 6)
    The defendant denies that the Plaintiff is entitled the relief claimed or at all… .”
  1. [17]
    In support of its assertion that the respondent was ready, willing, and able to settle, Mr Edilbi deposed:

“8. On around the 29th Nov 2012 I became aware from Mr Roxo that the contract had become unconditional and that settlement would be occurring on or before 12th Dec 2012.

  1. Mr Roxo advised me that the previous owner Mr Cattos’ trustee had made a claim in relation to equipment (mentioned above and included by request of the purchaser on the contract) and that purchaser required written releases from the trustee in relation to this equipment.
  1. On around 6th Dec 2012 I wrote and mailed letter dated 6th Dec 2012 (annexed pg.18 to solicitors acting for the purchaser).
  1. I did not receive a response to this letter.
  1. On around the 10th Dec 2012 I executed a transfer of sale and Form 24 (annexed B) and handed this to Mr Roxo who I understood was to attend settlement on around 12th Dec 2012. Mr Roxo informed that there had been a claim by the previous owner’s trustee in bankruptcy in relation to some of the equipment included in the sale to the respondent. Mr Roxo advised me that the purchaser required a signed release from the trustee.
  1. On around 14th Dec 2012 Mr Roxo (upon his return from Queensland) advised me that he had been unable to meet with the purchaser and that the purchaser now was claiming a reduction in contract price arising from an alleged cost of removal of rubbish and in relation to a water allocation that was the subject of dispute between the trustee and Mr Roxo and which had never been included in the contract as it did not belong to the vendor at the time of sale.
  1. On around the 21st Dec 2012 I received a letter dated 12th Dec 2012 and in an envelope postmarked 17th Dec 2012.
  1. On around 3rd January 2012 I received a letter dated 14th December 2012 in an envelope postmarked 20th December 2012.
  1. On 10th Dec 2012, I executed Form 1 Transfer and Form 24 on behalf of the Applicant. I handed the transfer documents to Mr Roxo to deliver to the incoming mortgagee at settlement which I understood would be occurring at a branch of the incoming mortgagee bank.
  1. Mr Roxo executed a release of mortgage”
  1. [18]
    It is controversial that vendor finance was approved on 23 November 2012. Accordingly, pursuant to the contract settlement was to occur on or before 7 December 2012.
  1. [19]
    I have set out the contents of the defence and counterclaim of the respondent in detail. That is because, notwithstanding the facts and matters raised in pleadings and the affidavit material filed on behalf of the respondent, its real opposition to the application was articulated by Mr Roney SC in the following terms[5]:

“So the first issue is that the case as pleaded which is the contract provided for settlement either the 7th or the 11th clearly is not made up. So there’s a defence to the claim on the face of the plaintiff’s own pleaded case.

Secondly, as a matter of fact and law in the events that occurred here if there was, in fact, a required settlement date for the 7th, then when it passed without the plaintiff having tendered that meant that it, too was in breach or if not in breach certainly had not been ready, willing and able to settle on that date because it didn’t attend the settlement, it wasn’t planning on settling and didn’t attempt to settle. Once that happened time ceases to be of the essence and it needed to remake time of the essence to put my client in a position where it was in default. It didn’t do that.

Furthermore, the third point, what it did do was to convey entirely different impressions as to what the contract required or what they are prepared to do in terms of requiring a settlement and that was to invite agreement on the date rather than nominate one with a settlement notice. What that meant was that until such time as there was agreement or a settlement notice time was not of the essence. So therefore it was repudiatory for the plaintiff to insist on settlement on the 11th and it was repudiatory of the plaintiff to terminate on the basis of my client’s failure to settle that day. My client’s case is that they were ready to settle on the 12th and that Mr Roxo was running around trying to make arrangements to allow that to happen… .”[6] (emphasis added)

  1. [20]
    It was not in dispute that if, as the applicant now pleads, the contract specified that time was of the essence and that settlement was to occur “on 7 December 2013 or 11 December 2013”[7]and that the respondent refused to settle on that date(s), such refusal would constitute a breach of the contract, which in turn, would justify repudiation by the applicant. It was also not in dispute that if settlement was required to occur on 7 December 2013 and that the applicant extended the time for settlement to the 11th, due to the unpreparedness of the respondent to settle on or before the 7th, the extension of time, without more, does not constitute unqualified affirmation of the contract. In this context in Inness v Waterson as trustee for the Cobok Family Trust[8]Williams JA said:

“That a mere extension of time was properly categorised as a qualification on the right to elect to terminate the contract because of non-performance on the stipulated day, was recognised by Fry LJ in Howe v Smith …; there he said:

‘This was not a stipulation postponing the time for completion generally, but merely limiting the exercise of a consequential power.’

In turn that passage was incorporated into the reasoning of Kitto J in Tropical Traders Ltd v Goonan …

How an extension of time operates in law is discussed in Holland v Wiltshire, Tropical Traders Ltd v Goonan and Spencer v Cali. The reasoning of Kitto J in Tropical Traders Ltd v Goonan is the most important. He confirmed the authority of Barclay v Messenger at 54 and went on to say at 55:

‘The granting of the extension of time, therefore, far from constituting an election by the appellant to affirm the contract, was the announcement of an intention to refrain from electing either way until either the 17,500 pounds should have been paid or 14 January should have arrived. Not that election is a matter of intention. It is an effect which the law annexes to conduct which would be justifiable only if an election had been made one way or the other.’

Earlier that learned judge had said (at 53) that ‘the real questions which arise in relation to the granting of the extension are first whether it amounted to a binding election not to rescind for non-payment on 6 January, and secondly, if it did, amount to such an election, whether it was ineffectual to fix 13 January as a date in respect of which time was of the essence.’  In my view treating a mere extension of time as ‘an election not to rescind’ identifies the true nature of the granting of such an extension. That to my mind is clearly established by the reasoning in that judgment.

All that really leads to the conclusion that Connolly J precisely and accurately summarised the law in Spencer v Cali at 466 where he said:

‘... a mere extension substituting a new date for the date for performance stipulated in the contract will not destroy essentiality either generally or for the performance of the obligation in respect of which the extension is granted … . If time is an essential condition, to extend it does not waive the effect of the stipulation as a condition … . While an extension of time in particular circumstances may destroy essentiality ... as explained in Goonan’s case at 53, an extension without more is only a qualified and conditional waiver of the original stipulation and constitutes no more than a promise not to elect to rescind before the extended time: Goonan’s case at 55.’

Further, as Connolly J observed at 470, if the contract did not settle on the extended date the innocent party's right to rescind would be for the failure to complete on the original date.”

  1. [21]
    In Inness Keane JA (as he then was) said:[9]

“In Tropical Traders Ltd v Goonan, the granting of a ’mere extension’ of time as ‘an act of grace’ was treated as ‘only a waiver to the extent of substituting the extended time for the original time’. Such a grant, however it may be expressed, is treated as having effect as an intimation of a willingness to limit the exercise of the vendor's power to rescind by reason of non performance by the purchaser on the due date until after non performance on the extended date. In Spencer v Cali, a mere extension was described as ‘only a qualified and conditional waiver of the original stipulation’, or ‘a promise not to elect to rescind before the extended time’. (footnote deleted)

  1. [22]
    It was also uncontroversial that in the event that the respondent had unambiguously informed the applicant that it would not settle by the time stipulated by the contract it was unnecessary for the applicant to nonetheless formally “go through the motions of tendering performance”[10]. Of course, the applicant at the relevant time must itself have been ready, willing, and able to settle.
  1. [23]
    However, according to Mr Roney, the relevant material established three important facts. First, on or before 12 December 2013 the respondent was ready, willing and able to settle. Second, no settlement date had been set by 7 December 2013. Third, no settlement date had been set by 11 December, merely the applicant had extended an “invitation” to the respondent to settle on that date if acceptable.[11]Accordingly, in circumstances where no specific settlement date had been prescribed, no breach on the part of the respondent, by failing to attend settlement on the 7th or the 11th occurred.

Agency

  1. [24]
    Before dealing specifically with the more substantive matters raised by Mr Roney, the role of Mr Roxo in the dealings between the parties needs to be established. It was submitted on behalf of the respondent that while Mr Roxo might have been its agent in respect of some matters arising out of the transactions between the applicant and the respondent, it had not been established that he had authority to agree on a date for settlement.[12]
  1. [25]
    Mr Stewart SC, Senior Counsel for the applicant, submitted that on any test Mr Roxo had the necessary authority to agree on a settlement date for and on behalf of the respondent. I agree. Leaving aside any controversy between the material filed on behalf of the applicant and that of the respondent, Mr Roxo deposed that he was not the respondent’s agent at the material times.[13]However, he then goes on to depose to the facts that he:
  • was the person who was approached by the real estate agent and told that he had an offer of $1.1 million;[14]
  • put the offer to Ms Edilbi;[15]
  • received relevant correspondence;[16]
  • was involved in discussions concerning when settlement might occur.[17]
  1. [26]
    According to Ms Edilbi:[18]
  • Negotiations by her prior to her executing the contract on behalf of the respondent were “primarily” through Mr Roxo.[19]
  • It was Mr Roxo who was aware of and advised her when the contract became unconditional.[20]
  • Ms Edilbi executed then handed the transfer documents to Mr Roxo who she understood “was to attend settlement”.[21]
  1. [27]
    In my opinion, the evidence establishes to a sufficient degree of certainty that, at the very least, if Mr Roxo did not have actual authority to agree to a settlement date he had the ostensible or apparent authority to do so.

The substantive issues

  1. [28]
    On behalf of the applicant it was asserted that, pursuant to the finance clause of the contract, settlement was required no later than 7 December 2012[22]. It was also asserted that pursuant to clause 5.1(2) of the contract, Ms Edilbi nominated the Brisbane office of the applicant’s financier as the place for settlement. The appellant relies on the document at page 18 of Ms Edilbi’s affidavit in support of this assertion. A difficulty with this is that, in contrast to the document supporting the contention that settlement was to occur at Brisbane on 7 December 2012, Ms Edilbi’s correspondence commences with the proposition that “settlement…. is due on or about 12 December 2012 as per the contract”.
  1. [29]
    The timing of Ms Edilbi’s correspondence is curious in that it is dated 6 December 2012. It is difficult to envisage just why the day before the apparent settlement date, she would be suggesting another date.
  1. [30]
    On 27 November 2012, Mr Douglas, a solicitor acting on behalf of the applicant in respect of the purchase of the land, sent an e-mail to Mr Roxo which relevantly stated under the heading “settlement date”:[23]

“We advise that we wish to ensure settlement of this action is effected on 7 December 2012.

Would you please note your records accordingly.

Would you please advise the place of completion.

We advise that we look forward to attending to settlement of this action.”

  1. [31]
    This correspondence was apparently not replied to and, on 3 December 2012 another e-mail was forwarded to Mr Roxo. It relevantly stated under the heading “settlement date”:[24]

“We note that settlement of this action is due to be effected fourteen (14) days from finance approval date.

The buyer requests settlement be brought forward and effected on 7 December 2012.

We request confirmation that the seller is agreeable to settlement being effected on 7 December 2012”. (emphasis added)

  1. [32]
    The reference to the settlement being “brought forward” is consistent with a number of e-mails between the applicant, its solicitors and financier.[25]
  1. [33]
    The references to settlement being brought forward to the 7th seems to have occurred as a consequence of the reference in the e-mail of 27 November 2012 to finance being approved on 28 November 2012 and not the actual date, 23 November 2012. In this context, it also appears that the applicant’s financier was also confused thinking settlement was to occur on 12 November 2012.[26]That settlement was to occur on 12 November 2012 is consistent with Ms Edilbi’s amended affidavit to which reference has already been made.
  1. [34]
    On 6 December 2012, Mr Douglas again sent an e-mail to Mr Roxo. This time, under the heading “settlement” it was stated:[27]

“In accordance with the terms of the contract, settlement is fourteen (14) days from confirmation of finance approval, that is 11 December 2012.

Subject to confirmation we propose settlement is to be effected as follows:

Date: 7 December 2012

…..

We await confirmation you are in a position to settle.” (emphasis added)

  1. [35]
    The reference to 11 December 2012 again seems to be as a result of a misunderstanding about the date of approval of finance. The reference to “subject to confirmation” is ambiguous, but is at least suggestive of the applicant proposing settlement on the 7th subject to confirmation/acceptability to the respondent. This conclusion is also consistent with the observations made in the same e-mail under the heading “future action”:[28]

“The buyer has instructed they wish to proceed with the contract subject to all arrangements being agreed… .”

  1. [36]
    Similar language was used in the e-mail sent to Mr Roxo on 7 December 2012.[29]
  1. [37]
    According to Mr Roxo, up until 6 December 2012, he had no prior notification of a proposed settlement date.[30]I find this assertion somewhat difficult to accept in the light of the correspondence referred to and the sworn evidence of Ms Ford[31]and Mr Douglas.[32]However, as Mr Roney pointed out, resolving issues of credit is not, save for the clearest of cases, the province of a summary judgment application dealt with on the papers.
  1. [38]
    On 7 December 2012, after the time proposed for settlement had passed, a further e-mail was sent to Mr Roxo from the applicant’s solicitors. It relevantly said under the heading “settlement”:[33]

“In accordance with the terms of the contract settlement is to be effected fourteen (14) days from finance approval date. We confirm finance was approved on 27 November 2012, therefore, settlement is to be effected on 11 December 2012.

We confirm that we need to attend to finalising settlement arrangements. We request confirmation from you of the agreed settlement date.

In the circumstances settlement is to be effected as follows:

Date: 11 December 2012

….

We request confirmation in writing that you agree to the settlement date and time and place as we need to reschedule settlement arrangements with the buyer’s finance.

We advise should the seller not be in a position to effect on 11 December 2012 the buyer reserves all his rights under the contract of sale.” (emphasis added)

  1. [39]
    That settlement was required by 11 December 2012, but was intended to be brought forward to 7 December 2012 is not only consistent with some of the correspondence to which I have already referred, but also the evidence of Ms Edilbi and Mr Douglas himself. At paragraphs 49 to 52 of his affidavit Mr Douglas states:

“I said (to Mr Roxo) that under the terms of the contract, the settlement date was 11 December 2012 which was 14 days from the finance approval being 27 November 2012. Mr Roxo did not disagree.

Mr Roxo told me that he was not in a position to deliver the original release and transfer documents to Brisbane that day.

I said that it would be best to settle on 11 December 2012. Mr Roxo said he agreed with that.

Mr Roxo said he would arrange for the documentation to be delivered to Brisbane for settlement on that date (being 11 December 2012). I reiterated that all of the original documents needed to be in Brisbane for settlement to occur.”

  1. [40]
    On balance, while I am satisfied that applicant was ready, willing and able to settle on 7 December 2012 and the respondent was not, I am not sufficiently satisfied that the respondent was required to settle on that date. And, accordingly, I am not sufficiently satisfied that the respondent was in breach of the contract by not being ready, willing, and able to settle on that date.

11 December 2012

  1. [41]
    Consistent with much of the correspondence referred to above, it was originally pleaded against the respondent that settlement was to occur on 11 December 2012.
  1. [42]
    The applicant asserts that it was also ready, willing and able to settle on the 11th.[34]There is some uncertainty about the position of the respondent. In Ms Edilbi’s affidavit it was originally deposed that the respondent was also ready, willing, and able to settle on the 11th. However, the reference to the 11th in her affidavit appears to have been altered to the 12th, but unlike the other alterations in her affidavit, Ms Edilbi did not initial this apparent change. According to Mr Roney, the respondent’s case is that it was ready on the 12th not the 11th.[35]
  1. [43]
    As identified above, it is also the respondent’s case that the applicant did not “nominate” the 11th as the settlement, but merely “invited” agreement on that date. In this regard, the respondent points to the language used in the correspondence and communications from 7 December 2012.
  1. [44]
    According to Mr Douglas’ affidavit there is no doubt that settlement had been agreed as the 11th.[36]However, the language used in the correspondence from 7 December is less than definitive. For example, the e-mail sent at 4.44 p.m. on 7 December 2012[37]suggests on the one hand that the date for settlement was fixed, but on the other hand, that the date is yet to be agreed and confirmed. That somewhat contradictory language also appears under the headings “Settlement Statement” and “Future action” where it is said:

“We attached our draft Settlement Statement for your perusal and confirmation. This will need to be amended subject to agreed settlement date …”

and

“The Buyer has instructed they wish to proceed with the contract subject to all arrangements being agreed …”

  1. [45]
    By this stage, the reference to “subject to agreed settlement date” could not mean the date contemplated by the contract “within 14 days of settlement.” That would have been no later than 7 December 2012. Mr. Roney contended that the words “subject to” amounted to an invitation to the respondent to agree to the 11th or nominate another date. On balance, I consider it more likely to be a reference to the conversation between Mr. Douglas and Mr. Roxo referred to above at paragraph 39. However, Mr. Roxo denies that any such arrangement was reached.
  1. [46]
    While the e-mail sent at 11.33 a.m. on 10 December 2012 contains some of the contradictory language used in the earlier e-mail correspondence it, in my opinion, leaves little room for doubt that as far as the applicant was concerned the nominated settlement date was 11 December 2012.[38]Even more definitive language was used in the following e-mails up to 6.21 a.m. on the 11th.[39]
  1. [47]
    If it were not for the affidavit of Mr Roxo, who was not cross-examined, I would have, notwithstanding the language used in the e-mails, found for the applicant. However, Mr Roxo’s thus far unchallenged evidence is that on 10 December 2012, at around 7.30 p.m. he had a conversation with Mr Douglas to the effect that issues involving a “trustee”[40]were yet to be resolved and that the 11th was only a “tentative” date.[41]It may be that it is more than coincidental that Mr Roxo’s alleged telephone conversation occurred after the e-mails sent on the 10th containing the more definitive language about the settlement date were received.
  1. [48]
    As I have said, I consider the applicant to have quite a strong case for judgment bolstered by some curious aspects of the respondent’s case. By way of an example, why did Ms Edilbi originally depose to the fact that the respondent was ready, willing, and able to settle on the 11th and then apparently changed that date to the 12th without, as was the case with other alterations, initialling the change.
  1. [49]
    However, notwithstanding the apparent strength of the applicant’s case, the true state of affairs appears to eventually turn on matters of credit. As I have already said, save for the clearest of cases, such matters ought not be determined on a summary basis where evidentiary conflict exists and there has been no examination of principal witnesses. This, while perhaps very close, is not one of those cases.
  1. [50]
    Accordingly, the orders of the court are:
  1. The application for summary judgment is dismissed; and
  2. I will hear from the parties as to costs.

Footnotes

[1]  [2005] QCA 227 at para 11.

[2]  [2002] QSC 4 at para 27.

[3]  [2010] QCA 119 at paras 80 and 81.

[4]  [2008] QSC 312 at para 12.

[5]  Transcript (T) 1-21L-8-50

[6]  T 1-7L35-60: T 1-8 L1-30

[7]  Statement of Claim para 4(b).

[8]  [2006] QCA 155 at [7]-[10].

[9]  At [46].

[10]Foran v Wight (1989) 168 CLR 385 at 433 per Deane J.

[11]  T1-12 L15-20.

[12]  T1-7 L6-15; T1-9 L50-60.

[13]  Ross Roxo’s affidavit dated 20 February 2013 at paragraphs [24] and [27].

[14]  Ibid at paragraph [14].

[15]  Ibid at paragraph [13].

[16]  Ibid at paragraph [26].

[17]  Ibid at paragraphs [34] and [37].

[18]  Hadia Edilbi’s affidavit dated 20 February 2013.

[19]  Ibid at paragraph [6].

[20]  Hadia Edilbi’s affidavit dated 20 February 2013 at paragraph [8].

[21]  Ibid at paragraph [12].

[22]  Applicant’s written submissions [20].

[23]  Anthony Douglas’ affidavit dated 7 February 2013 item no 13 on page 54.

[24]  Ibid item no 15 on page 60.

[25]  Anthony Douglas’ affidavit dated 7 February 2013 item nos 14 & 15 on pages 56-59.

[26]  Anthony Douglas’ affidavit dated 7 February 2013 item no 14 on page 56 – e-mail from Mr Mauger to Mr Douglas.

[27]  Anthony Douglas’ affidavit dated 7 February 2013 item no 28 on page 95.

[28]  Ibid page 96.

[29]  Anthony Douglas’ affidavit dated 7 February 2013 item no 30 on page 101.

[30]  Ross Roxo’s affidavit dated 20 February 2013 at paragraph [32].

[31]  Tracey Ford’s affidavit dated 13 February 2013at paragraphs [13]-[17].

[32]  Anthony Douglas’ affidavit dated 7 February 2013 at paragraphs [43]-[50].

[33]  Anthony Douglas’ affidavit dated 7 February 2013 item no 33 on page 110.

[34]  Anthony Douglas’ affidavit dated 7 February 2013 at paragraph [90]; Gavin Thompson’s affidavit dated 5 February 2013 at paragraph [10].

[35]  T1-21 L37.

[36]  Anthony Douglas’ affidavit dated 7 February 2013 at paragraphs [49]-[56]; and file notes at pages 106 (item no 31), 115 (item no 35), and 121 (item no 38).

[37]  Set out in para [39] above.

[38]  Anthony Douglas’ affidavit dated 7 February 2013 item no 34 on pages 112-114.

[39]  Anthony Douglas’ affidavit dated 7 February 2013 item nos 36-39 on pages 116-123.

[40]  According to Mr Roxo “the previous owner’s trustee in bankruptcy” raised issues concerning some of the goods and chattels involved with the sale (Ross Roxo’s affidavit dated 20 February 2013).

[41]  Ross Roxo’s affidavit dated 20 February 2013 at paragraph [34].

Close

Editorial Notes

  • Published Case Name:

    Habi Pty. Ltd. v Global Group Enterprises Pty. Ltd.

  • Shortened Case Name:

    Habi Pty. Ltd. v Global Group Enterprises Pty. Ltd.

  • MNC:

    [2013] QDC 55

  • Court:

    QDC

  • Judge(s):

    Jones DCJ

  • Date:

    27 Mar 2013

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Deputy Commissioner of Taxation v Salcedo[2005] 2 Qd R 232; [2005] QCA 227
1 citation
Jump To
Cite 1 - [2005] QCA 227
Deputy Commissioner of Taxation v Salcedo [2005] Qd R 232
1 citation
Jump To
Cite 1 - [2005] Qd R 232
Foran v Wight (1989) 168 CLR 385
2 citations
Jump To
Cite 1 - (1989) 168 CLR 385
Cite 2 - (1989) 168 CLR 385
Hughes v Westpac Banking Corporation [2010] QSC 274
1 citation
Jump To
Cite 1 - [2010] QSC 274
Inness v Waterson A/T for Cobok Family Trust [2006] QCA 155
2 citations
Jump To
Cite 1 - [2006] QCA 155
Cite 2 - [2006] QCA 155
JM Kelly (Project Builders) Pty Ltd v Toga Development No 31 Pty Ltd (No. 2) [2008] QSC 312
2 citations
Jump To
Cite 1 - [2008] QSC 312
Cite 2 - [2008] QSC 312
McPhee v Zarb [2002] QSC 4
2 citations
Jump To
Cite 1 - [2002] QSC 4
Cite 2 - [2002] QSC 4
Mirvac Queensland Pty Ltd v Horne [2009] QSC 269
1 citation
Jump To
Cite 1 - [2009] QSC 269
Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd[2011] 2 Qd R 114; [2010] QCA 119
2 citations
Jump To
Cite 1 - [2010] QCA 119
Cite 2 - [2010] QCA 119
Spencer v Commonwealth of Australia [2010] HCA 28
1 citation
Jump To
Cite 1 - [2010] HCA 28
Swain v Hillman (2001) 1 All ER 91
1 citation
Jump To
Cite 1 - (2001) 1 All ER 91
Tarangau Game Fishing Charters Pty Ltd v Eagle Yachts Pty Ltd [2013] QSC 16
1 citation
Jump To
Cite 1 - [2013] QSC 16

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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