S J Tickle & Sons Pty Ltd v McLeish-Allen
[2015] QDC 165
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- Unreported Judgment
- S J Tickle & Sons Pty Ltd v McLeish-Allen[2015] QDC 165
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S J Tickle & Sons Pty Ltd v McLeish-Allen[2015] QDC 165
S J Tickle & Sons Pty Ltd v McLeish-Allen[2015] QDC 165
DISTRICT COURT OF QUEENSLAND
CITATION: | S J Tickle & Sons Pty Ltd & Anor v McLeish-Allen [2015] QDC 165 |
PARTIES: | S J TICKLE & SONS PTY LTD (ACN: 009 954 429) & BUDFIELD PTY LTD (ACN 011 034 012) AS TRUSTEE UNDER INSTRUMENT No. 710827475 (second plaintiff/applicant) v SUSAN LOUISE MCLEISH-ALLEN (defendant/respondent) |
FILE NO/S: | D177/14 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Maroochydore |
DELIVERED ON: | 25 June 2015 |
DELIVERED AT: | District Court at Brisbane |
HEARING DATE: | 22 May 2015 |
JUDGE: | Long SC, DCJ |
ORDER: |
|
CATCHWORDS: | PRACTICE AND PROCEDURE – where plaintiff applies for summary judgment under r 292 of the Uniform Civil Procedure Rules 1999 in relation to a claim for liquidated damages, damages and interest, in respect of a terminated contract for the sale of real property – Whether there exists a real, as opposed to a fanciful, prospect of success of the defendant and there is no need for a trial of the claim – Whether summary judgment should be granted where a party may improve its position by a proper amendment to the pleading – Where the defence substantially relies on the application of the National Credit Code, in circumstances where it appears that the reliance is misplaced – Where the defendant otherwise points to questions that arise as to the most substantial part of the plaintiffs claim, relating to interest and raises potential questions as to other aspects of that claim and indicates an intention to re-plead, including as to issues as to mitigation of damages. PRACTICE AND PROCEDURE – Where plaintiff alternatively applies that part of the defence and counterclaim be struck out under r 171 of the Uniform Civil Procedure Rules 1999 – Whether necessary or appropriate in circumstances where re-pleading is foreshadowed. Uniform Civil Procedure Rules 1999 r 5, 171 and 292 National Credit Protection Act 2009 (Cth), Schedule 1 National Credit Code, s 3 and s 5 Agar v Hyde (2000) 201 CLR 552 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 Chen v ANZ Banking Group Ltd [2001] QSC 43 Menneti v Chan [2007] QSC 190 Riggall & anor v Thompson [2010] QCA 144 Spencer v The Commonwealth [2010] HCA 28 Theseus Exploration M.L. v Foyster (1972) 126 CLR 507 |
COUNSEL: | GJ Barr for the plaintiffs C Wilson for the defendant |
SOLICITORS: | Butler McDermott Lawyers for the plaintiffs Jeffery Cuddihy and Joyce for the defendant |
Introduction
- [1]By application filed on 14 April 2015, the applicant seeks summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (“UCPR”), in respect of its claim and statement of claim, filed respectively on 18 and 19 November 2014. Alternatively and pursuant to r 171 of the UCPR, the applicant seeks that part of the defence and counterclaim be struck out.
- [2]The applicant’s claim is for:[1]
“1. Liquidated damages in the amount of $119,372.
2. Damages.
3. Interest pursuant to the Agreement in the amount of $11.85% per annum on the balance purchase price of $655,000 from 21/12/10 to 09/04/14, calculated in the amount of $256,031.43.
4. Interest pursuant to the Agreement in the amount of 11.85% per annum on the deficiency in resale price of $80,000 from 10/04/12 to date of judgment.
5. Interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld) in respect of other loss or expense incurred.
6. Costs of these proceedings pursuant to the Contract of Sale on an indemnity basis.”
- [3]Reference to the statement of claim discloses that the applicant sues for damages for the breach of a written contract for the sale of real property at Yandina, being a lot in a land development in which the applicants were involved. The statement of claim relevantly pleads that:
- (a)By written contract dated 30 January 2010, the respondent agreed to buy a block of land owned by the plaintiffs for the purchase price of $695,000 and paid the required deposit of $40,000, with the balance to be paid on or before 21 December 2010 (“1st settlement date”);
- (b)After advice that the respondent would not be able to settle on the 1st settlement date and after declining her request to rescind the contract and otherwise indicating preparedness to settle on the 1st settlement date, the applicants agreed, on or about 22 November 2010, to an “extension of time” for payment of the balance price upon the following terms (the ‘agreement’):
a. that interest accrue upon the balance purchase price in the amount of 8% per annum calculated from the 1st settlement date to the date of settlement; and
b. that settlement of the purchase be extended to 21 March 2011 (the ‘2nd settlement date’)”;[2]
- (c)Subsequently and after further advice that the respondent would not be able to effect settlement on the 2nd settlement date and on or about 9 March 2011, there was agreement for further “extension of time for payment of the balance price upon the following terms:
a. that interest accrue upon the balance purchase price in the amount of 11.85% per annum calculated from the 1st settlement date to the date of settlement; and
b. that settlement at the purchase be extended to 29 April 2011 (the ‘3rd settlement date’)”.[3]
- (d)When the respondent then indicated, on or about 21 April 2011, her further inability to effect settlement on the 3rd settlement date, the applicants declined her further request to rescind the contract and confirmed that they were ready, willing, and able to effect settlement on the 3rd settlement date;
- (e)Settlement was not effected on the 3rd settlement date (29 April 2011) and the applicants elected to affirm the contract;[4]
- (f)Then and by letter dated 4 August 2011 the applicants further confirmed that they were ready, willing, and able to effect settlement and “issued a notice to complete and settlement statement appointing a new settlement date of 8 September 2011 (the ‘4th settlement date’)”;[5]
- (g)That and in default of the contract of sale, the defendant failed to effect settlement on the 4th settlement date and the plaintiffs elected to affirm the contract[6] and that between 8 September 2011 and 10 December 2012, the parties “engaged in without prejudice correspondence to resolve the defendant’s default of the Contract of Sale”;[7]
- (h)Further and by letter dated 11 December 2012 the applicants “issued a notice to complete to the defendant appointing a new settlement date of 14 January 2013 (the ‘5th settlement date’);[8]
- (i)That in “default of the Contract of Sale, the defendant failed to effect settlement on the 5th settlement date” and by letter dated 15 January 2013 the applicants “elected to terminate the Contract of Sale for the defendant’s default”;[9] and
- (j)On 8 February 2014 the property was resold for $575,000 and settlement in that regard, occurred on 9 April 2014.[10]
- [4]In the statement of claim, the applicant’s damages are particularized as follows:
“a) Deficiency in price of property on resale in the amount of $80,000.
b) In respect of expenses incurred or loss suffered in payment of Sunshine Coast Regional Council rates and charges in respect of the property in the amount of $3,527.55 (refer to annexure ‘A’ for details).
c) In respect of expenses incurred or loss suffered in payment of property owner’s liability insurance premiums in respect of the property in the amount of $2,505 (refer to annexure ‘B’ for details).
d) In respect of expenses incurred or loss suffered in ongoing maintenance of the property in the amount of $7,250 (refer to annexure ‘C’ for details).
e) In respect of expenses incurred or loss suffered in advertising the Property for re-sale in the amount of $25,050.75 (refer to annexure ‘D’ for details).
f) In respect of expenses incurred or loss suffered in the payment of sales commission in respect of the resale of the property in the amount of $14,321.25 payable to Ken Guy Real Estate.
g) In respect of expenses incurred or loss suffered in the payment of legal costs in respect of the Contract of Sale and the re-sale of the Property in the amount of $13,072.33 payable to KPL.”[11]
- [5]On the hearing of the application for summary judgment, the applicants indicated that they no longer pursued summary judgment for the insurance premiums, particularised in the amount of $2,505.00 in paragraph 32(c) of the statement of claim, or the advertising expenses, particularised in the amount of $25,050.75 in paragraph 32(e). Accordingly judgment was sought as follows:
| Deficiency in sale price (32(a)) | $80,000.00 |
| Council rates (32(b)) | $3,527.55 |
| Maintenance costs (32(d)) | $7,250.00 |
| Commission on re-sale (32(f)) | $14,321.25 |
| Legal costs on contract and resale (32(g)) | $13,072.33 |
| Interest from 1st settlement date to 5th settlement date | $256,031.43 |
| Interest from 5th settlement date to present | $10,570.85 |
| Total | $384,773.41 |
- [6]It can be noted by reference to the written contract[12] that the following clauses of that contract are relevant to the applicant’s claims:
“9.1 Seller may affirm or terminate
If the buyer fails to comply with any provision of this contract, the seller may affirm or terminate this contract.
9.2 If Seller affirms
If the Seller affirms this contract under cl 9.1, it may sue the Buyer for:
- (1)damages;
- (2)specific performance;
- (3)damages and specific performance.
9.3 If Seller terminates
If the Seller terminates this contract under cl 9.1, it may do all or any of the following:
- (1)resume possession of the Property;
- (2)forfeit the Deposit and interest earned on its investment;
- (3)sue the Buyer for damages;
- (4)resell the Property.
9.4 Resale
- (1)The Seller may recover from the Buyer as liquidated damages:
- (a)any deficiency in price on a resale; and
- (b)its expenses connected with this contract, any repossession, any failed attempt to resell and the resale;
provided the resale settles within two years of termination of this contract.
- (2)Any profit on a resale belongs to the seller.
9.5 Seller’s damages
The Seller may claim damages for any loss it suffers as a result of the Buyer’s default, including its legal costs on a solicitor and own client basis and the cost of any Work or Expenditure under cl 7.6(2).
9.6 Interest on late payments
- (1)Without affecting the Seller’s other rights, if any money payable to the buyer under this contract is not paid when due, the Buyer must pay the Seller at settlement interest on that money calculated at the Default Interest Rate from the due date for payment until payment is made.
- (2)The Seller may recover that interest from the Buyer as liquidated damages.
- (3)Any judgment for money payable under this contract will bear interest from the date of judgment to the date of payment and the provisions of this cl 9.6 apply to calculation of that interest.”
- [7]Although the reference schedule to the contract, does not include any rate for the default interest rate, in that eventuality, it is provided that “the Contract Rate published by the Queensland Law Society Inc will apply” and there is evidence that the published rate was 11.45% as at 8 December 2010, 11.85% as at 18 March 2011 and has been 9.8% since 1 February 2015.[13]
The Application
- [8]The application for summary judgment is made pursuant to r 292 of the UCPR. Accordingly, such judgment may only be granted as to all or any part of the plaintiff’s claim:
“[i]f the court is satisfied that—
- (a)the defendant has no real prospect of successfully defending all or a part of the plaintiff's claim; and
- (b)there is no need for a trial of the claim or the part of the claim;”
- [9]It is correctly pointed out that such applications are to be considered in the context of and having regard to the overriding philosophy of the rules as expressed in UCPR 5 and there was commonality of recognition of the general principle that determination of proceedings in a summary way is to be done only in the clearest of cases.[14]
- [10]As was acknowledged for the applicants, it is not necessary to establish that the defence is “bound to fail” and that the inquiry is as to whether there exists a real, as opposed to a fanciful, prospect of success.[15] It was further recognised that the necessary caution that should be adopted was expressed in Agar v Hyde[16], as follows:
“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.”
- [11]Otherwise, the respondent referred to Chen v ANZ Banking Group Ltd,[17] in support of the proposition that summary judgment should not be granted where a party may improve its position by a proper amendment to the pleading. However, no proposed amendment was expressly identified and on this application the respondent filed no evidence and mainly sought to demonstrate how triable issues potentially arose out of the applicant’s materials. In that further respect, reference was made to Theseus Exploration M.L. v Foyster,[18] for the proposition that if there is a triable issue of law, even where facts are undisputed, the extent and complexity of those issues may warrant a hearing.
- [12]In the first instance, the reliance on the prospect of amendment of the pleadings may be reflective of the fact that, leaving aside some non-admissions, the amended defence filed on 4 February 2015, most substantially raises issue with the statement of claim to the extent that, after pleading that there was an agreement:
“On 8 December 2010 that the defendant would pay interest at 8% on the sum of $655,000 from 21 December 2010 until the date of settlement”;[19]
It was pleaded that:
- (a)by that agreement, the plaintiffs agreed to provide “credit” to the defendant, within the meaning of s 3 of the National Credit Code (“the code”);[20]
- (b)there was a failure to comply with specific requirements of the code, in relation to the provision of such credit;[21] and
- (c)consequently there was an entitlement to set off the amount of its counterclaim, made in reliance on a pleaded contravention of “key requirements” of the code and for “a penalty comprising all interest claimed by the plaintiffs pursuant to the alleged agreement together with such greater penalty as the court may deem fit, pursuant to ss 114 and 115 of the code.”
- [13]Otherwise, the only other facts or matters positively asserted by the respondent are that she:
- (a)“says that the letter from KPL advised that if the defendant did not complete the Contract of Sale in accordance with the settlement statement delivered (i.e. on 8 September 2011) the plaintiffs would terminate the contract and exercise their rights”;[22]
- (b)“says that, upon termination of the Contract of Sale, the defendant was released from her obligation to pay interest pursuant to the Agreement and the plaintiffs’ rights are governed by cl 9 of the Contract of Sale”;[23]
- (c)generally denied that she was in default on the contract of sale and that the plaintiffs had suffered the loss and damage alleged; and
- (d)more specifically denied liability “for advertising the property for resale prior to 15 January 2013, being the date of termination of the Contract of Sale because the Contract of Sale was on foot until that date”.
Discussion
- [14]It was upon this state of the pleadings that this application was made and as was conceded by the respondent’s counsel on the hearing of the application, the point raised in reference to the code was not his best point. However, it is correctly pointed out that the applicant’s claim for interest is based in contract rather than damages and it is only in respect of the claim for interest that it was sought to pursue the point raised under the code.
- [15]The applicants take issue with the applicability of the code.[24] First it may be noted that pursuant to s 5 of the code,[25] it only applies to “the provision of credit”. Accordingly, the respondent must bring the agreement that is sued upon in respect of the claim for interest, within the provisions of s 3 of the code, which provides the meaning of “credit” and “amount of credit”, relevantly as follows:
“(1) For the purposes of this code, credit is provided if under a contract:
- (a)payment of a debt owed by one person (the debtor) to another (the credit provider) is deferred; or
- (b)one person (the debtor) incurs a deferred debt to another (the credit provider).
- (2)For the purposes of this code, the amount of credit is the amount of the debt actually deferred. The amount of credit does not include:
(a) any interest charged under the contract…”
- [16]Accordingly, there is a question as to whether the interest claimed here is capable as being regarded as a relevant debt that is deferred or a deferred debt within the meaning of s 3. However and even if it is, a specific requirement of s 5 of the code (amongst others) is that:
“(1) This code applies to the provision of credit (and to the credit contract and related matters) if when the credit contract is entered into or (in the case of pre-contractual obligations) is proposed to be entered into:
…
- (c)a charge is or may be made for providing the credit; …”
- [17]It is not suggested that there was or could be any change for any agreement that interest would be payable at a subsequent time and at the very least, this appears to be a substantial impediment to the point which is sought to be made by the respondent and by reference to the code and as underpinning the counterclaim in the amended defence.
- [18]However, it can also be recognized that the situation is complicated by the not entirely clear position of the applicants, that the claim for interest is based on a separate and collateral contract, rather than a collateral agreement to vary the contract of sale. Also and as has been noted, there is a contention that any right of the applicants to claim interest, ceased on termination of the contract and that the only subsisting right to claim interest as a contractual entitlement, is pursuant to clause 9.6.
- [19]Further, other substantial contentions were made by the respondent in relation to the issue of mitigation of damages by the applicants and the claim for interest, more generally.
- [20]Although the applicant claims both liquidated damages pursuant to the contract and also “damages”, only the claim for liquidated damages is particularised.[26]
- [21]It has been recognised that the duty of mitigation of damages does potentially apply to the exercise of a right of resale and recovery of difference in price on resale, pursuant to clause 9.4 of the contract.[27] However and in respect of any such issue, there is an onus on the respondent[28] and the inquiry will not be necessarily as to the extent of difference in resale price but rather as to any departure from appropriate market value.[29]
- [22]Whilst and in the first instance, the respondent points to the difference in resale, being the amount of $120,000,[30] the most substantial point is that although the claim is based on the settlement of the resale occurring within two years of the termination of the contract, that occurs more than four years after the purchase price of $695,000 was agreed between the parties and in circumstances where the applicants also maintain a claim for a substantial sum, by way of interest on the sum of $655,000 (being the balance of that purchase price, taking into account the deposit of $40,000). The explanation for the amounts sought on this application being calculated at the rate of 11.85% per annum, for the period from 21 December 2010 to 9 April 2014 and therefore in the amount of $256,031.43[31] and in addition, at the same rate, on the net deficiency in resale price ($80,000) from 10 April 2014 to 22 May 2015 and therefore in the amount of $10,570.85,[32] is:
In order to obtain the extensions of time the Defendant agreed to pay interest in varying terms, the last iteration of which was the agreement to pay 11.85% per annum on the balance purchase price from 21 December 2010 until the date of settlement.[33]
- [23]In the prayer for relief in the statement of claim, these components are claimed “pursuant to the agreement”, which is defined in the statement of claim, at [12] and in reference to the agreement reached as to the first extension of settlement date from 21 December 2010 to 21 March 2011 (at an agreed rate of 8% per annum). Then and at [14], it is further pleaded:
“14. The plaintiffs and the defendant agreed to extension of time for payment of the balance price upon the following terms:
- That interest accrue upon the balance purchase price in the amount of 11.85% per annum calculated from the first settlement date to the date of settlement; and
- That settlement of the purchase be extended to 29 April 2011 (the ‘3rd Settlement Date’)”;
- [24]Further and although directly responsive to the respondent’s pleading as to engagement of the code, in the reply and answer, the applicants also plead:
“3. The plaintiffs deny the allegations contained within subparagraph 12(e) of the Defence because:-
- (a)by clause 2.5(1) of the Contract of Sale the Defendant was required to pay the Plaintiffs the sum of $655,000 on the 1st settlement date;
- (b)by clause 9.6(1) of the Contract of Sale the Defendant was liable to pay the Plaintiffs interest on the money payable under the Contract of Sale but was not paid when due, such interest to be calculated at the 'Default Interest Rate’;
- (c)the default interest rate in the Contract of Sale was defined by the Reference Schedule thereto to be the Contract Rate published by the Queensland Law Society Inc QLSI (‘the QLS’);
- (d)the Contract Rate published by the QLS and applicable as at 8 December 2010 was 11.45% per annum…”
- [25]Despite this, these interest components do not appear to be claimed pursuant to clause 9.6 of the contract of sale. It is apparent that there may be a question as to whether that clause would support the entirety of the claim and the respondent points to some observations made in the textbook Land Contracts in Queensland,[34] to exemplify some difficulties that may arise.
- [26]The reply and answer then proceeds, to assert that the agreement which is pleaded in paragraph 12 of the statement of claim was “collateral to the Contract of Sale” and was in consideration for the plaintiffs forgoing entitlements to insist upon the completion of the contract of sale by the defendant on the 1st settlement date and the remedies available pursuant to clause 9 of the contract of sale.
- [27]However, there is no pleading by the applicants, as to any further or subsequent express agreement as to any extension of time for settlement, after 29 April 2011, or as to the payment of interest after that date. Although and as pointed out by the applicants, the pleading at [14] in the statement of claim is expressly admitted by the defendant,[35] it is also of significance to note that:
- (a)The subparagraphs of the admitted allegation must necessarily be read together; and
- (b)The allegation is based on the contents of an exchange, by way of facsimile, between the parties’ solicitors and dated respectively 15 and 18 March 2011 and the agreement evidenced by the response by the respondent’s solicitor, as follows:
“we confirm that our respective clients agree to the extension of the settlement date from 21 March 2011 to 29 April 2011 on the condition that our client pays default interest on the purchase price less the deposit, at the rate of 11.84% from 21 December 2010 until the settlement date, and with time to remain the essence of the contract.”[36]
- [28]The respondent also justifiably pointed to the amount of the claim for interest, particularly to the extent that it was based upon the original purchase price under the contract and the fact that this is claimed in addition to the difference in resale price and also the period over which this component is claimed. It can be noted that this period includes a period from 29 April 2011 to 9 April 2014, which and until the applicants terminated the contract on 15 January 2013,[37] is largely characterised by the unilateral actions of the applicants in attempting to achieve settlement and the fixing of what are referred to as the fourth and fifth settlement dates and thereafter, the time taken to effect and settle the resale.
- [29]In this context, the respondent specifically drew attention to the letter dated 4 August 2011, from the applicants’ solicitors[38] and which encloses a settlement statement for the settlement proposed for and notice to complete on 8 September 2011 and which otherwise indicates that in the event of failure to complete, their client would terminate and exercise rights under the contract, including resale and stated:
“Our client proposes to sell by way of auction 3 other lots in the Estate. If your client does not settle on the settlement date, then our client proposes to include in the auction of the other 3 lots the auction for lot 7. If your client wishes to have a separate auction for lot 7, it will involve additional costs, please advise.”
- [30]There are apparent questions as to the claimed entitlements as to interest and also and although for the respondent, it was recognized that she was not in a position to point to any particular failure on the part of the applicants, to take reasonable steps to mitigate loss, there is merit in the contention that the circumstances and particularly the combination of relief sought, tend to call for some scrutiny or enquiry and that this will also be facilitated by disclosure before trial. In these circumstances, it should be accepted that there are legal and factual questions that arise and potentially arise and which are such as to indicate uncertainty as to the most substantial parts of the claim of the applicants and also that a trial is necessary.
- [31]In addition and perhaps only taking on any critical significance in the light of what has already been observed, the respondent also drew attention to issues that also potentially arise in respect of the following additional aspects of the claim that the applicants pursued on their application for summary judgement:
- (a)In relation to the maintenance costs claimed in the amount of $7,250 and in circumstances where there are likely to be issues as to the incurrence of separate and distinct expenses relating to a separate lot in a subdivision, it was contended that no real basis was provided for the claim. It was simply stated that a calculation had been made on the basis of a charge rate of $75 per hour for 90 hours and no records produced to substantiate the expense or as to how it was incurred;
- (b)Legal fees and outlays are claimed in the amount of $13,072.33[39]and the respondent points out that only a tax invoice is produced, with a lump sum entry for $12,474.33, for:
“professional fees, photocopying and facsimile transmissions in accordance with Independent Cost Assessor, grahamcosts legal, dated 15 May 2014 as per attachment”.
The attachment referred to, is not included and it is contended this impedes any assessment of reasonableness of the significant sum that is claimed. However, clause 9.5 of the contract allows for the recovery of legal costs on a solicitor and own client basis and whilst there may remain some question of reasonableness, in the context of what has been observed as to the potential issues as to mitigation of damages, more information may be required in order to determine whether all items are reasonably or properly claimable;
- [32]Submissions were also made by the respondent as to what was contended to be the potential penal character of the claim for commission on the resale. Reference was made to Riggall & Anor v Thompson.[40] However, that decision is not necessarily of assistance to this contention:
- (a)First, there is confirmation of the decision in Menneti v Chan,[41] that where a seller terminates under clause 9.1 and resells under clause 9.4, within two years of termination, clause 9.4(1)(b) entitles the seller to recover both the commission incurred in respect of the terminated contract and in respect of the resale;[42] and
- (b)Secondly and although there was acceptance of the premise that clause 9.4(1)(b) is penal in effect, in allowing the recovery of both the expenses of the contract and the resale,[43] the conclusion that the clause was unenforceable as a penalty depended upon a conclusion that the amount recoverable under clause 9.4(1)(b) was “out of all proportion with the loss that the parties might have anticipated at the time of contract as flowing from a breach …. and the consequential termination of the contract”, in circumstances where recovery of both sets of expenses was pursued and the expenses connected with the contract amounted to more than half the amount of the claimed deficiency on resale and nearly one-third of the total loss otherwise proved to be recoverable as damages.[44]
However, it can, at least, be said that a final determination of any such issue and in particular as to whether an extravagant or unconscionable entitlement is claimed,[45] might depend on knowledge of circumstances beyond the scope of the presently available material.
Conclusion
- [33]Accordingly, the application for summary judgment should be dismissed.
- [34]Although the applicants alternatively applied that the pleadings in the amended defence and counterclaim and referable to the code, be struck out and that for the reasons that have been given, the reliance upon the code by the defendant does not appear to be tenable, such a conclusion could only be finally reached in relation to the pleadings as they stand. As it was candidly indicated that there is an intention to further amend and re-plead the defence and it remains to be seen as to whether there will remain any reliance upon that code and also, as it was understood in the course of argument, it was indicated that it may be that the applicants will also seek to re-plead in the light of these reasons, it is neither necessary nor desirable to do so.
- [35]Therefore, I will further hear the parties as to the orders and directions to be made in consequence of these reasons.
Footnotes
[1] As set out in the claim and repeated in the prayer for relief and the statement of claim.
[2] See statement of claim, filed 18/11/1, at [12].
[3] Ibid at [14].
[4] As above n 2 at [19].
[5] Ibid at [20].
[6] Ibid at [24]-[25].
[7] Ibid at [26].
[8] Ibid at [27].
[9] Ibid at [28]-[29].
[10] Ibid at [30]-[31].
[11] See Statement of Claim at [32]; KPL “is earlier referred to in the Statement of Claim as a reference to a firm of solicitors acting on behalf of the applicants.”
[12] Exhibit GT1 to the affidavit of G J Tickle, filed 14/4/15.
[13] Affidavit of M J Turner, filed 14/4/15, at [6].
[14] See Spencer v The Commonwealth [2010] HCA 28 at [60] and Coldham-Fussel & Ors v Commissioner of Taxation [2011] QCA 45 at [102].
[15] See Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 234, Bolton Properties Pty Ltd v J K Investments (Aust) Pty Ltd [2009] 2 Qd R 202 at 206, 216, and Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259 at 264.
[16] (2000) 201 CLR 552, at 575-576.
[17] [2001] QSC 43.
[18] (1972) 126 CLR 507.
[19] Amended defence, filed 4/2/15, at [12(d)].
[20] Ibid at [12(e)].
[21] As above n 17, at [12(f)].
[22] Ibid at [20(c)].
[23] Ibid at [29(b)].
[24] See generally the reply and answer, filed 5/2/15.
[25] See Schedule 1 to the National Credit Protection Act 2009 (Cth).
[26] If it has not already been made, an election may be necessary, as there may not be recovery of both cf: Riggall & Anor v Thompson [2010] QCA 144 at [8]-[13].
[27] AHR Constructions Pty Ltd v Maloney [1994] 1 Qd R 460.
[28] At least in an evidential sense; see Knot Investments Pty Ltd & Ors v Fulcher & Ors [2013] QCA 67, [2014] 1 Qd R 21 at [29] – [36] and see AHR Constructions Pty Ltd v Maloney [1994] 1 Qd R 460 .
[29] AHR Constructions Pty Ltd v Maloney [1994] 1 Qd R 460 at 466.
[30] $80,000 being claimed, by offsetting the forfeited deposit of $40,000.
[31] Applicants’ written submissions, at [9(i)].
[32] Ibid at [9(j)].
[33] Ibid at [9(c)].
[34] 3rd edition 2011, Christensen, Dixon, Duncan and Jones, at p 482.
[35] Amended defence, at [14(a)].
[36] See affidavit of GJ Tickle, filed 14/4/15, at Exs. GT-7 and GT-8.
[37] Save perhaps for what is referred to in the pleading at [26] as “without prejudice correspondence to resolve the Defendant’s default of the Contract of Sale” between 8/9/11 and 10/12/12.
[38] Affidavit of GJ Tickle, filed 14/4/15, at Ex. GT-9.
[39] See affidavit of JF Limpus, filed 14/4/15, at [15] and JL4.
[40] [2010] QCA 144.
[41] [2007] QSC 190.
[42] [2010] QCA 144, at [18]-[19].
[43] Ibid at [29].
[44] As above n 38, at [33]-[34].
[45] Ibid at [31].