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Black & Black v De Waard & De Waard[2021] QDC 138

Black & Black v De Waard & De Waard[2021] QDC 138

DISTRICT COURT OF QUEENSLAND

CITATION:

Black & Black v De Waard & De Waard & Anor [2021] QDC 138

PARTIES:

ANDREW STEVEN BLACK & ADELAIDE ELLEN BLACK

(Plaintiffs)

v

LACHLAN BRUCE DE WAARD & NYSA KIMBERLEY DE WAARD

(First Defendants)

KEVIN TOMLINSON

(Second Defendant)

FILE NO:

8/2018

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Ipswich

DELIVERED ON:

15 July 2021 

DELIVERED AT:

Ipswich

HEARING DATE:

22 March 2021

JUDGE:

Horneman-Wren SC DCJ

ORDERS:

  1. The plaintiffs’ application is dismissed
  2. The proceeding, as against the first defendants, is dismissed
  3. The parties are to file submissions on costs within 14 days

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – WANT OF PROSECUTION OR LACK OF PROGRESS – Whether leave of the court is required to take a further step in the proceeding – whether the plaintiff should be granted leave to take a further step in the proceeding –where a step has not been taken in the proceeding for over two years – where plaintiff submits that if activities taken fall short of taking steps they have the character and reach height of progressing matter in any event – where proceedings characterised by delay – where prospects of success are poor – where leave is refused.

LEGISLATION:

Australian Consumer Law ss 18; 30; 236(1)

District Court Act 1967 (Qld) s 69(2)

Fair Trading Act 1989 (Qld) ss 38; 99

Land Title Act 1994 (Qld) ss 62(1); 182; 184(1)

Property Law Act 1974 (Qld) s 59

Trade Practices Act 1974 (Cth) s 52; 82 

Uniform Civil Procedure Rules r. 206; 280; 389; 467

Rules of the Supreme Court Order 90, r. 9; Order 39, r. 30A(5)

CASES:

Alati v Kruger (1955) 94 CLR 216

Artahs Pty Ltd v Gall Stanfield & Smith [a firm] [2013] 2 Qd R 202

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 593

Concord Park v Allied Organik Ltd & Anor [2003] QDC 420

Cooper v Hopgood & Ganim  [1992] 2 Qd R 113

Dempsey v Dorber [1990] 1 Qd R 418

Fletcher v Manton (1940) 64 CLR 37

Hobson v Gorring (1897) 1 Ch 182

HTW Valuers (Central Queensland) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640

Kaats v Caelers [1966] Qd R 482

Kizbeau Pty Ltd & Ors v WG&B Pty Ltd & Anor (1995) 184 CLR 281

Lillyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372

Northshore Gas Co Ltd v Commissioner for Stamp Duties (NSW) (1940) 63 CLR 52

Porzucek v Toowoomba District Health Service [2007] QSC 177

Seirlas v Bengston & Ors [2013] QSC 240

Smiley v Watson [2002] 1 Qd R 560

Sparkman’s Electricity Pty Ltd & Ors v Habershon [2017] QSC 156

Taylor v State of Queensland [2009] QSC 318

Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178

Way & Anor v Primo Rossi Pty Ltd & Anor [2018] QCA 203

Wright v Ansett Transport Industries Limited [1990] 1 Qd R 297

COUNSEL:

Mr D Love (Solicitor) for the plaintiffs

Ms S A Amos for the first defendants

No appearance for the second defendant

SOLICITORS:

Fallu McMillan for the plaintiffs

McNamara Law for the first defendants

 

  1. [1]
    In February 2018 the plaintiffs commenced this proceeding against the first and second defendants.  As against the first defendants, the plaintiffs claim $180,000.00 as damages for breach of contract.[1]   As against the second defendants they claim the same amount, but as damages for misrepresentation and, or alternatively, breach of ss 18 and 30 of the Australian Consumer Law.[2]
  2. [2]
    Curiously, the plaintiffs also claim $180,000.00 against “the third defendant” as damages for negligence and, or alternatively, breach of s 18 of the Australian Consumer Law.[3]  There is no named third defendant in the claim.  The plaintiffs’ statement of claim[4] does not name a third defendant and contains a prayer for relief which repeats the claims against the first and second defendants in accordance with the claim and which does not include any claim against any third defendant.
  3. [3]
    The plaintiffs have applied for the following “orders”:
  1. Finding that the plaintiffs do not require leave at this time to take a step in these proceedings or in the alternative;
  2. Leave is given pursuant to Rule 389(2) to take a step in these proceedings.
  1. [4]
    The “order” sought in paragraph 1 is not an order at all.  However, a finding that a step has been taken in the proceeding such that two years had not elapsed since the last step was taken, would obviate any need for leave under r. 389 of the Uniform Civil Procedure Rules.  The court might make a declaration to that effect.[5]
  2. [5]
    The first defendants apply for the proceeding to be dismissed for want of prosecution under r. 280 UCPR.  They seek their costs of both their application and the proceeding. 
  3. [6]
    For the reasons which follow, the plaintiffs do require the court’s leave to take a new step and that leave should be refused.  The first defendants’ application should be allowed.

Steps taken in a proceeding

  1. [7]
    A “step” for the purpose of r. 389 is undefined.  The jurisprudence in respect of both that rule and Order 90, rule 9 of the former Rules of the Supreme Court establishes that in order to satisfy that expression, the particular step must be one which progresses the proceeding.  The principle has been described in slightly differing terms, but all to the same conclusion.[6]
  2. [8]
    In Citicorp Australia Ltd v Metropolitan Public Abattoir Board,[7] McPherson SPJ (as his Honour then was and with whom Ryan and Dowsett JJ agreed) said of the former rule:

“It may I think be accepted that to constitute a ‘proceeding’ the act or activity must have the characteristic of carrying the cause or action forward”.

  1. [9]
    His Honour went on to observe:

“That is particularly so where the act in question has, so far as the other party or the court is aware, no readily discernible impact on the progress of the action.  Time and effort expended on preparing an affidavit of documents achieves nothing if the affidavit is never delivered.  Taking instructions from the client or proofs from witnesses are necessary activities if the action is to be brought to trial.  None of them can however fairly be described as a ‘proceeding’ in the cause as that expression is used in Order 90, Rule 9.”

  1. [10]
    The relevant activity considered in Citicorp was the inspection of produced documents, but the observations have broader, general relevance.
  2. [11]
    In Smiley v Watson,[8] Williams JA (Davies and McPherson JJA agreeing) concluded that neither taking a statement from a potential witness nor obtaining a document pursuant to a writ of non-party discovery constituted the taking of a step in the proceeding saying:  “In neither case has the actual proceeding between the parties been advanced.”
  3. [12]
    In Artahs Pty Ltd v Gall Stanfield & Smith [a firm],[9] McMurdo P concluded that on the basis of the authorities analysed by Peter Lyons J in the same case:[10]

“It is clear…that, to be a step under r. 389 it must, consistent with that word’s ordinary meaning, progress the action towards a conclusion.”

  1. [13]
    Her Honour had earlier referred to the ordinary meaning of “step” in the context of litigation as being “a move or proceeding, as towards some end or in the general course of action; the first step towards peace”.[11]
  2. [14]
    The step need not be required by the rules, but must have this characteristic of advancing the proceeding.[12]
  3. [15]
    It is on the basis of that understanding of the meaning of “step” that I turn to consider when the last step was taken in this proceeding and thus whether leave to take a further step is required.

Is leave required?

  1. [16]
    The question as to whether leave is required to take a further step requires identification of when the last step, as explained above, was taken.
  2. [17]
    The parties agree that a step was taken in the proceeding on 4 October 2018 when the second defendant served his list of documents.[13]  Although they identify this as the last step, the first defendants, contradictorily, also refer to a step having been taken on 11 October 2018 when the second defendant provided disclosure of documents to the first defendant.[14]  The plaintiffs also refer to this step.[15]
  3. [18]
    The step taken by the plaintiffs giving rise to the application, and which the plaintiffs concede requires leave if no earlier steps were taken after the service of the second defendant’s list of documents on 4 October 2018, was their disclosure of a file note under cover of a letter dated 11 November 2020, but which was actually delivered on 10 November 2020. 
  4. [19]
    On that analysis, it is apparent that the step on 10 November 2020 was taken five (or perhaps four) weeks after two years had elapsed from the agreed previous step.
  5. [20]
    The plaintiffs contend that there have been other events which occurred during the two year period following the last agreed step which were also steps in the proceeding, or which “should be considered so”.  If any of those events were steps in the proceeding, then an order of the court permitting the taking of a further step is not required.
  6. [21]
    The plaintiffs’ contention is based upon r. 467 UCPR or, more accurately, Form 48 which is the approved form for requesting trial dates under r. 467.  The contention is that the plaintiffs took steps which permitted compliance with the completion of a request for trial date in Form 48 as required by r. 467.  The contention has a number of sub-parts.
  7. [22]
    First, the plaintiffs refer to a letter of 4 September 2019 sent by their solicitors to the solicitors for each of the other parties in which a “round table discussion” was requested.[16]  They say that the purpose of that request was to have settlement negotiations with the view to resolving all or part of the matter.  The argument then runs that “such request for settlement negotiations would allow the certification of Item F of Form 48”.
  8. [23]
    Item F is in these terms:

“The parties have/have not engaged in alternative dispute resolution/settlement negotiations”.

  1. [24]
    The plaintiffs submit “that a court would expect some approach to be made before a party elected to cross out the words ‘as follows…have/have not engaged…”.[17]
  2. [25]
    The basis for the court having such an expectation is not stated.  Such an approach is not required by r. 467, or by any other rule.  Nor is it required that the parties have engaged in alternative dispute resolution or settlement negotiations.  All Item F requires is a statement, as a matter of fact, whether the parties have or have not done so.
  3. [26]
    The plaintiffs’ solicitors’ letter of 19 September 2019 did not, of itself, advance the proceeding.  Nor did it in any way facilitate the completion of Item F.  The statement required by Item F could as much be made when a suggestion for a “round table discussion”, or any other form of settlement negotiations, had not been made as it could when it had been.
  4. [27]
    The letter of 4 September 2019 was not a step in the proceeding.
  5. [28]
    The plaintiffs’ submissions refer to the first defendants having required further disclosure from the plaintiffs before the suggested “without prejudice” discussions could occur.  In fact, by their letter in reply of 10 September 2019 the solicitors for the first defendants renewed a request for disclosure which they had made more than a year earlier, on 6 September 2018.
  6. [29]
    The second defendant declined the request for a round table discussion by email on 16 September 2018.
  7. [30]
    The second sub-part to the plaintiffs’ contention is that in late July 2020 they made enquiries of the court as to the availability of trial dates and of the defendants as to the estimated length of trial and dates convenient to them.  The plaintiffs submit that “those enquiries are required in order to allow the certification in Item I of the Form 48”. 
  8. [31]
    Item I is ion these terms:

“The parties have made every reasonable effort to confer and reach agreement on the estimated trial length and on trial dates which are convenient to the parties.”

  1. [32]
    Those enquiries made of the defendants by the plaintiffs were not, and could not be considered, steps in the proceeding. 
  2. [33]
    In Wright v Ansett Transport Industries Limited,[18] Dowsett J observed of the provision by a party of an unsigned certificate of readiness for trial under the former Order 39, rule 30A(5) of the Rules of the Supreme Court:

“The intention of the rule is that the plaintiff certify that the action is ready for trial and that he then forward the certificate to the other parties for them to similarly certify.  I do not think that the provision of an unsigned certificate comes within the contemplation of the rule.”

  1. [34]
    Dowsett J concluded that the provision of an unsigned certificate of readiness was not a proceeding in the action for the purposes of the former Order 90, rule 9.
  2. [35]
    Here, there had not even been the preparation of an unsigned request for trial date; just some enquiries which may have facilitated the completion of one part of such a request. 
  3. [36]
    It was not a step.
  4. [37]
    The third sub-part of the contention is that on 11 August 2020, and in response to the plaintiffs’ enquiries as to prospective trial dates and trial duration, the first defendants asserted that the matter was not ready for trial and sought further disclosure.  In fact, the first defendants’ solicitors’ email of that date again raised the outstanding disclosure first requested, then, almost two years earlier on 6 September 2018.  It was in that context that they asserted that the matter was not ready for trial.  That assertion must have been correct. 
  5. [38]
    Rule 467(4) of the UCPR prescribes that a party is ready for trial if various matters are satisfied.  One of those matters, prescribed by r. 467(4)(d) is that:

“As far as the party is concerned, all necessary steps in the proceeding (including steps to obtain to disclosure or inspection of documents, admissions, particulars and answers to interlocutories) are complete.”

  1. [39]
    Clearly, as far as the first defendants were concerned, steps to obtain disclosure were not complete.
  2. [40]
    The plaintiffs go on to submit that:

“Rule 467(d)[sic] could be relied upon by the first defendants to require the provision of the file note before they would give certification as required in Item E of the Form 48”.

  1. [41]
    Item E of Form 48 states:

“We confirm the proceeding is ready for trial within the meaning of UCPR Rule 467(4) and all necessary steps in the proceeding are complete”.

  1. [42]
    It is not a matter of the first defendants being able to rely upon r. 467(4)(d) to require the provision of a document before they would give certification.  They simply could not certify that the matter was ready for trial when that disclosure by the plaintiffs remained outstanding.  They were not a party ready for trial.
  2. [43]
    Nothing in that exchange between the plaintiffs and the defendants advanced the proceeding.  It was not, and could not be considered, a step.
  3. [44]
    It is to be noted that on 2 June 2020 the plaintiffs had served notice pursuant to r. 389(1) of their intention to proceed and take a further step in the proceeding.  Such notice, of itself, is not a step.[19]  No step was taken pursuant to that notice before the expiration of the period of two years since the last step taken.
  4. [45]
    The plaintiffs have failed to establish that two years had not elapsed without the taking of a step.  They require an order of the court to take a new step.

Should the court make an order permitting the taking of a new step?

  1. [46]
    In Tyler v Custom Credit Corp Ltd & Ors,[20] Atkinson J (McMurdo P and McPherson JA agreeing) set out an inclusive list of 12 factors which the court would take into account in determining whether the interests of justice required a case to be dismissed for want of prosecution or whether leave to proceed under r. 389(2) should be granted.  Those factors are:
  1. How long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
  2. How long ago the litigation was commenced or causes of action were added;
  3. What prospects the plaintiff has of success in the action;
  4. Whether or not there has been disobedience of court orders or directions;
  5. Whether or not the litigation has been characterized by periods of delay;
  6. Whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
  7. Whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;
  8. Whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;
  9. How far the litigation has progressed;
  10. Whether or not the delay has been caused by the plaintiff’s lawyers being dilatory.  Such dilatoriness will not necessarily be sheeted home to the client but it may be.  Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
  11. Whether there is a satisfactory explanation for the delay; and
  12. Whether or not the delay has resulted in prejudice of the defendant leading to an inability to ensure a fair trial.
  1. [47]
    Not all those factors will have equal importance with each other in any particular case. Nor will any one of them necessarily attract the same importance when considered in the context of different cases.  In Taylor v State of Queensland,[21] Ann Lyons J referred to with approval the observations of Connolly J in Dempsey v Dorber[22] where his Honour said:

“The question whether there is good reason for making such an order obviously involves the consideration of all relevant matters and the question of whether there was reasonable excuse for the delay is unquestionably a relevant matter…in my judgement, the proper approach to a question such as this is to identify the relevant factors, assess the weight to be given in the circumstances of the case to each of them and then to determine whether, on balance, there is good reason for making the order.”

  1. [48]
    In Lillyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd[23] Chesterman J, having also approved the same passage from Connolly J’s judgment in Dempsey v Dorber, went on to observe:

“Whether there is a satisfactory explanation for the delay in the prosecution of the action and whether the defendant will suffer prejudice if the action proceeds are always relevant factors.  The discretion conferred by to r. 389 (sic) is one to allow an action to proceed despite the general prohibition against an action continuing in which no step has been taken for three years.  The applicant must satisfy the court that grounds exist for exercising the discretion in its favour.  There is an evidentiary onus on the defendant to raise any questions telling against the exercise of the discretion but the ultimate onus of satisfying the court that the action should be allowed to proceed remains on the applicant.” (emphasis added).

  1. [49]
    Before turning to consider the factors identified by Atkinson J so far as they are relevant in this case, it is necessary to say something further about the proceeding and the plaintiffs’ claims. 
  2. [50]
    As I have already said, the plaintiffs’ claim as against the first defendants is for damages for breach of contract whereas their claim against the second defendant is for damages for misrepresentation and, or alternatively, breach of ss 18 and 30 of the Australian Consumer Law.
  3. [51]
    By paragraph 1 of the their statement of claim, the plaintiffs plead that by a contract dated 20 September 2014 they agreed to purchase from the first defendants the land described as Lot 1 on RP 125302 situated at 32 Odra Street, Camira for $370,000.00.
  4. [52]
    By paragraph 2 they plead that the contract was completed on 20 October 2014 when they paid the balance purchase price to the first defendants in return for an executed transfer and that they subsequently became the registered owners of the land.
  5. [53]
    By paragraphs 3 and 4 they plead that in order to induce them to make and complete the contract and pay the purchase price, the first defendants, by their agent, the second defendant, represented to them that the dwelling constructed on the land had three bedrooms, two bathrooms and two living areas upstairs and downstairs.  Those representations are said to have been made by, and are to be inferred from, an internet post by the second defendant on behalf of the first defendants.
  6. [54]
    The plaintiffs then allege that on the faith and truth of those representations, and induced by them, they made and completed the contract and paid the purchase price.
  7. [55]
    At  paragraph 6 the plaintiffs plead that they:

“…have since discovered and it is the fact that the representations were untrue because the downstairs area of the dwelling could not be lawfully used for residential purposes…with the result that the dwelling has only two bedrooms and one bathroom”.

  1. [56]
    Various particulars of defects are then set out, most of which allege non-compliance with the Building Code of Australia.
  2. [57]
    The claim against the first defendants is then pleaded, at paragraphs 7 to 9 of the statement of claim as follows:

“7. By Clause 12.1(3) of the contract the first defendants warranted to the plaintiffs that there was no impediment to them completing the sale. 

  1. At the time of entering into the contract and at all times up to and including the date for completion of the sale there was an impediment to the first defendants completing the sale, namely, because the downstairs area did not comply with the Building Code of Australia the first defendants could not sell and convey Lot 1 and the dwelling unit to the plaintiffs as a dwelling having three bedrooms and two bathrooms.
  1. In the premises, the first defendants breached the warranty alleged in paragraph 7 and remained in breach of that warranty at the date for completion of the sale.”
  1. [58]
    Then, as against the second defendant, the claim is pleaded at paragraphs 10 to 15 as follows:

“10. At all material times the second defendant carried on the business of a real estate agent under the business name ‘Express Rental Management Springfield Lakes’.

  1. The second defendant was employed by the first defendants to effect the sale of Lot 1.
  1. In order to effect the sale of the property the second defendant published the representations about it which are alleged in paragraph 3 that the dwelling on Lot 1 had three bedrooms and two bathrooms.
  1. The publication was made in the course of trade or commerce within the meaning of the Australian Consumer Law.
  1. In the premises representations were untrue for the reasons alleged in paragraph 6 and were misleading or deceptive, or likely to mislead or deceive contrary to s 18 of the Australian Consumer Law.
  1. In the premises the representations were, contrary to s 30 of the Australian Consumer Law:
  1. (a)
    made in connection with the sale or possible sale of an interest in land;
  1. (b)
    false or misleading representations concerning the characteristics of the land;
  1. (c)
    false or misleading representations concerning the use to which the land was capable of being put or might lawfully be put;
  1. (d)
    false or misleading representations concerning the existence or availability of facilities associated with the land.”
  1. [59]
    As referred to earlier in these reasons, the plaintiffs’ prayer for relief is, relevantly:

“(a) the sum of $180,000.00;

  1. (i)
    As against the first defendants as damages for breach of contract;
  2. (ii)
    As against the second defendant as damages for misrepresentation and, alternatively, breach of ss 18 and 30 of the Australian Consumer Law.”
  1. [60]
    The pleaded warranty given by the first defendants by Clause 12.1(3) of the contract is in these terms:

“12.1 The seller warrants, unless otherwise disclosed in this contract, that at the time of settlement;

…

  1. (3)
    There is no impediment to the seller completing the sale.”
  1. [61]
    It is convenient at this point to refer to some other terms of the contract.
  2. [62]
    Clause 9 deals with settlement.  Clause 9.2 provides that on the settlement date the buyer must pay the balance purchase price and the seller must deliver to the buyer, amongst other things, the instrument of title (if any) and transfer documents executed by the seller in a form capable of immediate registration in accordance with the Land Title Act 1994.
  3. [63]
    “Transfer documents” are defined by Clause 1(31) as:

“Transfer documents: all those documents necessary to transfer title to the property, as defined to the buyer, including Queensland Land Registry Transfer and Form 22 and Form 24.”

  1. [64]
    Clause 9.5 provides:

“Vacant possession of the land (except if tenanted) and title to all the property shall be given and passed to the buyer on payment of the balance purchase price.”

  1. [65]
    “Property” is defined by Clause 1(23) as:

“Property: the land described in Item (6) together with improvements described in Clause 1(14) and the included chattels described in item (17).”

  1. [66]
    The land described in Item 6 of the contract is the freehold 32 Odra Street, Camira, Lot No. 1 on Plan RP 125302.  The improvements described in Item 1(14) are:

“Improvements: all fixed or permanent structures on the land and any items fixed to them including domestic dwelling, sheds, car accommodation, pergolas, inground or fixed pools (regulated or otherwise), fixed carpets and tiles, curtains, blinds and fittings, stoves, hot water systems, fixed antennae, fixed satellite dishes, fixed security systems, fixed clothes lines and all inground plants, unless excluded in Item (16).”

  1. [67]
    Turning then to the relevant factors identified by Atkinson J in Tyler.

How long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced on 14 February 2018.

  1. [68]
    The events giving rise to this proceeding occurred more than six and a half years ago.  As paragraph 2 of the statement of claim pleads, the contract was completed on 20 October 2014.  The proceeding was commenced, approximately four years and four months after those events. 
  2. [69]
    The plaintiffs’ pleading that they “have since discovered and it is the fact that the representations were untrue” does not disclose when they made that discovery.  Similarly, the plaintiffs’ written submissions state that they “subsequently became aware of a cause of action” without disclosing when this occurred.  It cannot, therefore, be established with any certainty as to what delay there may have been from that discovery to the commencement of the proceeding.
  3. [70]
    Some further understanding of what delay there may have been emerges from the plaintiffs’ written submissions. 
  4. [71]
    By reference to certain documents in their list of documents,[24] the plaintiffs identify a number of steps “taken between the parties and by the plaintiff [sic] prior to bringing these proceedings”.  Those steps include commissioning a compliance assessment report by Catchpole Building Services.  That report is dated 14 December 2015.  The date upon which it was commissioned is not disclosed.  Nor is it disclosed as to what prompted the plaintiffs to commission the report.  The plaintiffs also identify that they obtained an estimate to carry out building compliance work.  That estimate is dated 29 February 2016. 
  5. [72]
    From these facts I would infer that the plaintiffs were aware of the facts giving rise to a cause of action by 14 December 2015, and of the cost of rectification to attain compliance by February 2016.  The latter date is approximately two years before the proceeding was commenced. 
  6. [73]
    The next “step” referred to in the plaintiffs submissions is the commissioning of a valuation on 30 January 2017, with the valuation itself being provided on 3 April 2017.  No explanation is provided, either by evidence or submissions, as to the delay between receiving the compliance report in late 2015 and the rectification estimate in early 2016, and the commissioning of the valuation some 11 months later. 
  7. [74]
    The plaintiffs next refer to their solicitors “corresponding with the second defendant on 16 May 2017”.  They do so again by reference to their list of documents.  The correspondence is not in evidence, nor is any description of its content or purpose. 
  8. [75]
    They next refer to making a “without prejudice demand” one month later on 16 June 2017.  They refer to the first defendants responding on 3 July 2017.  Again, they do so only by reference to a list of documents, although in respect of these last two matters it is the first defendants’ list to which they refer. 
  9. [76]
    The plaintiffs then refer to the commencement of the proceeding on 14 February 2018.  There is no explanation for the delay of seven months from the time of receiving the first defendants’ response to the demand and initiating proceedings. 
  10. [77]
    In my view, there has been delay by the plaintiffs between the events alleged in the statement of claim, the times at which it is to be inferred they had knowledge of the alleged non-compliance and the cost of rectification, and the commencement of the proceeding.

How long ago the litigation was commenced or courses of action were added.

  1. [78]
    As set out above, the litigation was commenced on 14 February 2018. 

The plaintiff’s prospect of success in the proceeding.

  1. [79]
    In my view, this is a factor of particular importance in this case.  As the earlier analysis of the plaintiff’s statement of claim clearly demonstrates, the respective claim against the first defendants and the second defendant are different.  This is also patently clear from paragraphs (a)(i) and (a)(ii) of the claim.  As against the first defendants it is a claim for damages for breach of contract; that breach being of the warranty contained in clause 12.1(3) that at the time of settlement there was no impediment to the seller completing sale.  As against the second defendant, it is a claim for damages for misrepresentation and/or breach of sections 18 and 30 of the Australian Consumer Law.
  2. [80]
    Notwithstanding the clarity of this distinction between the claims made against the first defendants on the one hand and the second defendant on the other, the plaintiffs’ submissions on the application, both written and oral, failed to recognise it and proceeded as though no distinction existed.
  3. [81]
    In their written submissions, insofar as they address the plaintiffs’ prospects of success, they state:

“3.5 The claim relates to representations with respect to the advertised characteristics of the dwelling sold, namely having three bedrooms.  The third bedroom is downstairs and among other things is not of legal height to be characterised as a bedroom. 

3.6 The defendants had themselves purchased the property as a two bedroom house.

3.7 This matter bears similarity to cases such as Seirlas v Bengston & Ors and Kizbeau Pty Ltd v WG&B Pty ltd and McLean.”

  1. [82]
    As to the submission that the matter is similar to those two cases, neither bears any similarity to, nor could they be authority for, the claim and pleaded case against the first defendants.  Each case concerned claims for damages under s 82 of the Trade Practices Act 1974 (Cth) for contraventions of s 52 of that Act: corporations which had engaged in misleading and deceptive conduct and natural persons involved in such contraventions.  Seirlas also concerned an individual’s liability for damages for misleading and deceptive conduct under ss 38 and 99 of the Fair Trading Act 1989 (Qld).  Kizbeau concerned only the proper basis for calculation of damages; not how liability for such damages may arise.[25]
  2. [83]
    In oral submissions the following exchange took place:

“Mr Love: So the pleaded case is that the first defendants bought the property as a two bedroom house and sold it as a three bedroom house, and that the inclusion of the third bedroom in the advertisement was a misrepresentation about the true nature of the character of the property being purchased by the plaintiffs.

His Honour: But your pleaded case as against the first defendants is simply that there was an impediment to completing the contract because the defendant – first defendants could not sell the house as a three bedroom.  That’s your pleaded case, isn’t it?

Mr Love: That’s only part of the pleaded case.  The case is – and this part of the case hasn’t been met by the defendants, and that is in the statement of claim at paragraph 3 is the inducement, the representations in paragraph 4 and then acting on those representations, entered into the contract and completed it.  And in the defence, they do no admit those – paragraph 3, the first defendant’s do not admit paragraphs 3 to 6 and 10 to 15 of the statement of claim.

His Honour: But turn to paragraph 7: “Claim against the first defendants.  By clause 12.1(3), the defendants warranted to the plaintiffs that there were no impediments to completing the sale.  At the time of entering the contract, and at all times up to, including the date of completion, there was an impediment, namely, because the downstairs area didn’t comply with the building codes.  The defendants could not sell and convey Lot 1.  The defendants breached the warranty”.  That’s the case that’s the claim against the first defendants.

Mr Love: But the other claim is damages for misrepresentation.

His Honour: Well, where do I find that?  By reason – this – you – the – under the heading damage: by reason of the matters pleaded in paragraphs 9 – that’s the claim against the first defendants, and 15 – the claim against the second defendant – forget that for the moment, the plaintiffs have suffered loss and damage.  The prayer for relief is, as against the first defendant, “$180,000 as damages for breach of contract”.  The only breach of contract pleaded being a breach of the warranty in clause 12.1(3).  The breach being because they weren’t able to sell.  So you can look at introductory paragraphs all you like, but it’s not the pleaded case. 

  1. [84]
    Following that exchange, Mr Love said: “Well, I can really only say that the pleadings as they are leave open the possibility for request for an amendment”.  When it was observed by the court the request for trial dates had been made certifying the matter was ready for trial, Mr Love said “Well, it’s an issue, I suppose that’s been pointed out today”. 
  2. [85]
    Mr Love conceded that for the purpose of dealing with the application before the court the plaintiffs were restricted to their pleaded case. These exchanges demonstrate a blurring of the clear distinction in the pleaded cases against the first and second defendants and a mischaracterization of the case against the first defendants.
  3. [86]
    In my view, the plaintiffs’ prospects of success in their pleaded case against the first defendants are extremely poor.  Indeed, the pleaded case against the first defendants seems doomed to fail.
  4. [87]
    The immediate difficulty which the plaintiffs’ case against the first defendants faces is that the warranty which they allege was breached was “that at the time of settlement there is no impediment to the seller completing the sale”.  The plaintiffs alleged that the first defendants breached that warranty because there was an impediment to their completing the sale from the time of entering the contract and at all times up to and including the date for completion.  Yet the plaintiffs plead, and it is undeniably correct, and it is admitted by the first defendants, that the contract was completed on 20 October 2014.
  5. [88]
    The “impediment” which the plaintiffs allege to the completion of the sale (notwithstanding the pleaded completion of the contract) is “because the downstairs area did not comply with the Building Code of Australia the first defendants could not sell and convey Lot 1 and the dwelling unit to the plaintiffs as a dwelling having three bedrooms and two bathrooms”. 
  6. [89]
    A number of points should be made about this alleged impediment.
  7. [90]
    First, the first defendants did not contract to sell Lot 1 and the dwelling “as a dwelling having three bedrooms and two bathrooms”.  It is not alleged by the plaintiffs that any statement made concerning the dwelling having three bedrooms and two bathrooms was incorporated in the contract as a term.[26]  There is no such description of the dwelling contained in the contract.  The first defendants contracted to sell the property comprising the land together with the improvements and included chattels.[27]  The improvements included the fixed dwelling.  The contract identified “residential” as the present use of the property.[28]  By clause 25 the first defendants stated that as far as they were aware that use of the property was legal, but expressly gave “no warranty in respect thereof”. 
  8. [91]
    There was, in terms of the warranty contained in clause 12.1(3) of the contract, no impediment to the first defendants as seller completing the contracted sale.  The property conveyed at the time of settlement was that contracted for.[29]
  9. [92]
    The plaintiffs plead that on 20 October 2014, the settlement date stated in the contract, as part of the completion of the contract they were provided by the first defendants a duly executed transfer and that they, the plaintiffs, subsequently became registered proprietors of Lot 1.  Upon registration of that transfer and their becoming registered proprietors, all the rights, powers privileges and liabilities for the first defendants in relation to the Lot vested in the plaintiffs.[30]  As registered proprietors they hold their interest in the Lot subject to registered interests, but free of all other interests.[31] 
  10. [93]
    The dwelling, as a fixture forming part of the land, passed to the plaintiffs upon conveyance or transfer of the first defendants’ estate in the land.[32] 
  11. [94]
    On any view, as the plaintiffs themselves plead, the sale of the contracted property completed on 20 October 2014 and, as at that date, there was no impediment to the first defendants completing it.  There cannot have been a breach of the warranty contained in clause 12.1(3) of the contract.  The plaintiffs’ claim against the first defendants, based solely on an alleged breach of that warranty, must necessarily fail. 
  12. [95]
    This conclusion, in my view, provides strong reason to refuse the plaintiffs’ application and to allow that of the first defendant.
  13. [96]
    The plaintiffs have better prospects of success against the second defendant, at least as to one of their claims; although the strength of those prospects cannot be fully judged at this time.  As already set out, the case against the second defendant is very different to that against the first defendants. 
  14. [97]
    The following is a summary of the second defendant’s pleaded defence.  He admits that he caused to be published an internet advertisement for the Lot that included the sentence “comes with three bedrooms, two bathrooms and two living areas upstairs and downs(sic) stairs with lots of living and storage space”.[33]
  15. [98]
    He pleads that any representations made by him to the plaintiffs were made on behalf of, and approved by, the first defendants for the purpose of marketing the property.[34] 
  16. [99]
    He does not admit that the representations were untrue, but pleads that if the dwelling does not have three bedrooms and two bathrooms which are habitable or constructed in accordance with the Australian Building Code or any other standard or requirement, the representations were not untrue because they were merely a description of how the dwelling was used and/or presented by the first defendants and not a representation of any legal compliance.[35]
  17. [100]
    For the same reasons he denies that the representations were misleading or deceptive.[36]
  18. [101]
    Further, he denies that the representations were likely to mislead or deceive because: they could not be construed by any reasonable buyer as being a representation of legal compliance; and/or any reasonable buyer in the place of the plaintiffs, having the benefit of a contract conditional on a satisfactory building inspection, having obtained a building inspection, and having opportunity to carry out searches and inquiries on the property by their legal representative, would be unlikely to accept the representations as representations of legal compliance.[37]
  19. [102]
    For the reasons already referred to, the second defendant denies the representations were false or misleading concerning: the characteristics of the land; the use to which it was capable of being put; or the existence or availability of facilities associated with it.[38]
  20. [103]
    He further pleads that if he engaged in misleading or deceptive conduct, the first defendants, as principles in an agency relationship, are liable to the plaintiffs for his acts or omissions as their agent, and/or that the first defendants were “involved” in his conduct and are liable to the plaintiffs under the Australian Consumer Law.[39]
  21. [104]
    The second defendant then goes on to plead that: the first defendants purchased the property in January 2012;[40] they knew or ought to have known that the property was marketed to them as having two bedrooms and one bathroom;[41] and that at the time the first defendant appointed him their agent, and at all subsequent times, knew the property should have been advertised by him as a two bedroom, one bathroom house.[42]
  22. [105]
    The second defendant pleads that when the first defendants approved the internet advertisement for the property they falsely represented to him that the house had three bedrooms and two bathrooms that were legal and habitable.[43]  He pleads that he neither knew, nor could he reasonably have known, that the property had only two legal, inhabitable bedrooms and one bathroom, and that he acted and was entitled to act on the information provided by the first defendant.[44] He pleads that in placing the internet advertisement for the property he did so as agent for the first defendant acting within the scope of actual authority.[45]
  23. [106]
    He then pleads that by their actions, the first defendants were ‘involved’ within the meaning of that term in the Australian Consumer Law. 
  24. [107]
    He pleads that, in those premises, the first defendants are liable to the plaintiffs for their damages arising out of his representations about the property under s 236(1) of the Australian Consumer Law.
  25. [108]
    This summary of the second defendant’s defence can be further distilled to two essential elements: a denial of his liability for the representations as alleged against him by the plaintiffs; and, or alternatively, an assertion of the first defendants’ liability to the plaintiffs for those representations.
  26. [109]
    Notwithstanding his pleading that the first defendants are liable to the plaintiffs for damages for representations made by him, when no such liability is pleaded by the plaintiffs against the first defendants, the second defendant has not claimed relief against the first defendants by way of contribution or indemnity by filing and serving a third party notice under r. 206 of the UCPR.  Pleading the first defendants’ liability to the plaintiff does not amount to such a claim by him against the first defendants.
  27. [110]
    A further observation should be made.  Notwithstanding the second defendant having alleged bases for the first defendants’ liability to the plaintiffs for the representations and under the Australian Consumer Law in his defence filed on 16 March 2018, no amendment has been sought to be made by the plaintiffs to amend their claim or statement of claim to themselves allege such liability of the first defendants to them on those bases.
  28. [111]
    It is to be recalled that the plaintiffs’ claim against the second defendant is expressed, in both their claim and prayer for relief in their statement of claim, as being for damages for misrepresentation, or alternatively, breach of ss 18 and 30 of the Australian Consumer Law.  However, in respect of the former, there is no pleading of material facts capable of establishing an entitlement to damages for misrepresentation.
  29. [112]
    Paragraph 16 of the statement of claim pleads:

“16. By reason of the matters alleged in paragraphs 9 and 15 the plaintiffs have suffered loss and damage in that it will cost them $180,000.00 to make the downstairs area compliant with the Australian Building Code.”

  1. [113]
    Paragraph 9 is the seemingly meritless allegation that the first defendants breached the warranty in Clause 12.1(3) of the contract.  Only paragraph 15 relates to the second defendant.  It relates to, and alleges only, a liability for damages for breach of the Australian Consumer Law.
  2. [114]
    There are other problems associated with the plaintiffs’ claim for damages for misrepresentation. 
  3. [115]
    It not having been alleged that the misrepresentations became contractual terms, the only contractual consequence of an actionable misrepresentation under the general law is that the representee may rescind the contract.  Damages are only obtainable in tort, or under statutory provisions such as the Australian Consumer Law.  It is not pleaded that the representations were fraudulent giving rise to a right to claim damages in the tort of deceit.  It is not pleaded that the representations were negligent giving rise to a right to claim damages in the tort of negligence.
  4. [116]
    In short, the plaintiffs’ claim for damages for misrepresentation is made without any pleaded foundation for it in fact or law. 
  5. [117]
    That part of the plaintiff’s claim against the second defendants also appears doomed to fail.
  6. [118]
    That leaves only the plaintiffs’ claim for damages under the Australian Consumer Law.  Although the plaintiffs have pleaded facts which would give rise to such cause of action, the basis upon which they claim damages may be somewhat misconceived.  The claim for $180,000.00 is based upon that being the prospective cost for them to make the downstairs area compliant with the Australian Building Code.
  7. [119]
    A claim for damages for false or misleading representations under the Australian Consumer Law is analogous to a claim for damages under s 82 of the Trade Practices Act 1974 (Cth) for misleading or deceptive conduct in contravention of s 52 of that Act.  Of the proper basis for measurement of damages, the High Court (Brennan, Dean, Dawson, Gaudron and McHugh JJ) said in Kizbeau Pty Ltd v W G & B Pty Ltd:[46]

“In an action for damages for deceit for inducing a person to enter a contract of purchase, which is an action that is closely analogous to an action for damages for breach of s 52, the courts have consistently held that the proper measure of damages is the difference between the real value of the thing acquired as at the date of acquisition and the price paid for it.”

  1. [120]
    In Seirlis v Bengston & Ors,[47] Philip McMurdo J observed that: “The measure of damages is not universal, inflexible or rigid.”  His Honour cited HTW Valuers (Central Queensland) Pty Ltd v Astonland Pty Ltd.[48]  In HTW Valuers, the High Court in a single judgment explained why it is that such an approach is not inflexible or rigid, even though in other cases it had been called a “rule” and that it was “well settled”.[49] 
  2. [121]
    The plaintiffs’ claim for $180,000.00 being the cost of making the downstairs area compliant with the Australian Building Code is not pleaded to be the difference between the real value of the property as at the date of acquisition and the price they paid for it. The two measures are not necessarily to be equated. Circumstances or considerations which may lead to a flexible approach in this case, such as would support the measure of damages asserted by the plaintiffs may exist; but there is nothing which can be gleaned from the pleadings, evidence on the application, or submissions by the plaintiffs, which would either identify the existence of such matters or explain the need for a different approach to that ordinarily applicable.
  3. [122]
    In my view, the plaintiffs’ prospects of success in the proceeding, or lack thereof, weighs against their application and their being permitted to take a further step in it.

 Whether or not there has disobedience of court orders or directions.

  1. [123]
    There has been no disobedience of court orders or directions.

 Whether or not the litigation has been characterized by periods of delay.

  1. [124]
    In my view, this litigation has been characterized by periods of delay. 
  2. [125]
    I have already referred to the largely unexplained delay prior to commencement of the proceeding.  As the chronology in the first defendants’ submissions demonstrates, between October 2018 and September 2019 there were 11 months of inactivity.  The only activity which occurred in September 2019 was the plaintiffs’ solicitors’ letter in which they sought available dates from the defendants with a view to holding a “round table discussion” which was followed within a week by the first defendants’ rejection of that suggestion because their request for disclosure by the plaintiffs, made approximately a year earlier, had not been addressed.  The first defendants’ rejection of the proposal was followed by the second defendant’s rejection a further week later.  Following those, prompt, rejections was another period of inactivity of eight months when the plaintiffs served their notice of intention to proceed, upon which intention they did not act.
  3. [126]
    Viewed together, the only activity by the plaintiffs in a 19 month period was the suggested without prejudice meeting which was promptly rejected by the other parties.
  4. [127]
    The plaintiffs provide no real explanation for the delay.  Delay is addressed in only the briefest terms in their written submissions:

“Any delay has been as a result of actual activities that do not constitute steps within the meaning of the rules, and not as a result of the plaintiff’s [sic] inaction.”[50]

  1. [128]
    The plaintiffs thereby disavow inactivity on their part and seek to explain delay by having engaged in activities which fell short of taking steps.  Their oral submissions were to the same effect. Mr Love submitted “if they’re not steps, they were still activities nonetheless, and they were activities that if they didn’t reach the heights of progressing the matter, they had the character of it”. Of course, the plaintiffs’ primary position was that they had in fact taken steps, thus there was no delay and no need for an explanation for it. 
  2. [129]
    Beyond the matters already addressed in the context of determining whether those activities did amount to steps in the proceeding, unexplained delay may be demonstrated by the only further matter referred to by the plaintiffs in their evidence.  Mr Love deposes to counsel having been “briefed in the matter on behalf of the plaintiffs” on 22 January 2019.  It is not said for what purpose counsel was briefed, or whether it was the same counsel who had settled the claim and statement of claim which had been filed almost a year earlier.  Mr Love next deposes to a conference being “subsequently held with the plaintiffs and counsel” and that “following that conference” the correspondence of 4 September 2019 suggesting the “round table conference” was sent.  Absent from that evidence is the date upon which the conference between counsel and the plaintiffs occurred.  In the absence of knowledge of that date, the court is unable to conclude whether there was delay between counsel having been briefed and the holding of the conference, delay between the conference and the sending of the letter of 9 September 2019, or both.  Certainly there is no explanation as to why the letter was sent when it was, counsel having been briefed seven and a half months earlier.

Other matters relevant to delay

  1. [130]
    In my view, the delay which has characterized the litigation has not been satisfactorily explained.  The limited evidence and submissions addressing the issue of delay does not permit a conclusion on the issue, however, the seven and a half month delay between briefing counsel and a letter suggesting a “round table conference” with apparently only a conference between the plaintiffs and counsel occurring in the meantime would suggest that it is likely that the lawyers have been dilatory. 
  2. [131]
    The delay does appear to have been attributable to the plaintiffs rather than the defendants.  The material demonstrates that the defendants have acted responsively and in a timely way, whereas the plaintiffs have not.  For example, Mr Love’s affidavit identifies that the second defendant’s solicitors requested further documents from the plaintiff on 2 November 2018.  He does not depose the plaintiffs having responded to that request.  He deposes to the next correspondence between the parties as being the letter of 4 September 2019 suggesting the “round table conference”.  The material also demonstrates that disclosure issues raised by each of the first and second defendants remained unaddressed two years after they were first raised.[51]
  3. [132]
    There is nothing to suggest that the plaintiffs’ impecuniosity has been responsible for the pace of the litigation.
  4. [133]
    On the issue of whether the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial, in Tyler v Custom Credit Corp Ltd & Ors[52] Atkinson J summarised the relevant test as:

“whether the plaintiff has satisfied the onus of showing that any prejudice the defendant may suffer is not such as to cause injustice to the defendant should the action be permitted to continue.”

  1. [134]
    The plaintiffs’ attempt to discharge this onus amounted to one sentence in their written submissions.  It was:

“The prejudice complained of by the first defendants is not of a character that would give the court put [sic] an end to these proceedings.”[53]

  1. [135]
    The first defendants identified, essentially, prejudice of two kinds.  The first is the general consideration expressed by McPherson JA in Cooper v Hopgood & Ganim[54] that:

“Ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.”

  1. [136]
    His Honour said that this is a factor that is often likely to be material observing, “the psychological as well as commercial effects of such a state of affairs ought not to be underestimated.” 
  2. [137]
    Mrs De Waard deposes to emotional effects which the litigation has had upon both her and Mr De Waard in the previous year.[55]  Those matters are linked to the second kind of prejudice which the first defendants raise which is the financial burden of the litigation.  Mrs De Waard deposes to their having deposited some $20,400.00 into their solicitors’ trust account. $3,909.25 of that was returned to them (after deduction of feels payable to that time) on their request following financial hardships they were experiencing. As a consequence of the COVID-19 pandemic, Mrs De Waard had suffered a reduction in her hours.  Mr De Waard had not, but had to expend a considerable amount of money to set up a home office so that he could work from home as he had been required to do.  One of their children faces considerable challenges including a learning disability.  Home schooling him was particularly difficult and required Mr De Waard to access annual leave.
  3. [138]
    She deposes to having access superannuation and having deposited $5,000.00 from those funds with her solicitors to fund this application.
  4. [139]
    Notwithstanding those financial matters, and their emotional effects, there is an absence of any particular matters which would likely impact upon the fairness of the trial.  Of course, as McHugh J pointed out in Brisbane South Regional Health Authority v Taylor,[56] prejudice may exist without the parties or anyone else knowing it exists.  However, there are no documents which have been identified as having been lost.  There are no potential witnesses who are no longer able to give evidence.
  5. [140]
    On balance, I do not consider that the delay has resulted in prejudice which would place a fair trial in peril.

How far the litigation has progressed

  1. [141]
    The plaintiffs contend that the litigation is well progressed.  In their written submissions they submit that “any outstanding issues raised by the parties could be dealt with by way of directions by consent or by the court.  The matter is otherwise ready for trial.”
  2. [142]
    The defendants contend otherwise, saying that the matter is not ready for trial, there being outstanding issues of disclosure.  The first defendants, to that end, submit that significant steps remain necessary for the matter to be ready for trial including finalising disclosure, engaging experts in relation to the alleged defects and participating in an alternative dispute resolution process.
  3. [143]
    Beyond the matters identified by the first defendants, the plaintiffs’ contention that the matter is “otherwise largely ready for trial”, must now be considered in the context of the plaintiffs having conceded in the hearing of the application that amendments to the statement of claim would be necessary if they were to advance any claim against the first defendants, other than the present claim for damages for breach of warranty which appears meritless.  That concession identifies that far from the matter being largely ready for trial, should they be allowed to continue the litigation, substantial steps, commencing with repleading their cases against the first defendants to add a cause of action, would be required.

Conclusion

  1. [144]
    Taking all of these matters into account, I am of the view that the plaintiffs should not have the benefit of an order allowing them to take a further step in the proceeding.  The lack of any real explanation for the delay and their poor prospects of success weigh heavily against granting their application. This is so notwithstanding that the delay has not prejudiced the defendants such that a trial could not be had.
  2. [145]
    For the same reasons, the first defendants should be granted the primary relief they seek.
  3. [146]
    The plaintiffs’ application will be refused and the first defendants’ application granted.
  4. [147]
    The parties are to file written submissions on costs, limited to three pages, within 14 days.

Footnotes

[1]Claim paragraph (a)(i).

[2]Claim paragraph (a)(ii).

[3]Claim paragraph (a)(iii).

[4]Also filed on 14 February 2018.

[5]Section 69(2), District Court Act 1967.

[6]In Concord Park v Allied Organik Ltd & Anor [2003] QDC 420 at [8] to [12] McGill SC DCJ concluded that the change in terminology from “proceeding” as used in Order 90 Rule 9 of the former Rules and “step” as used in the UCPR was “no more than a change in language” and did not produce a change in the law as to what was required to constitute a step.  His Honour’s conclusion was cited with approval by Moynihan J in Porzucek v Toowoomba District Health Service [2007] QSC 177 at [10].

[7][1992] 1 Qd R 593 at 594.

[8][2002] 1 Qd R 560 at [12].

[9][2013] 2 Qd R 202 at [3].

[10]At [46] – [47].

[11]At [3] citing Macquarie Dictionary, Federation Edition.

[12]Ibid at [4] per McMurdo P and [48] per Peter Lyons J.

[13]Plaintiffs’ outline of argument, paragraph 2.1; First Defendant’s outline of submissions, paragraphs 8 and 12.

[14]First Defendants’ outline of submissions, paragraph 8 citing Concord Park Pty Ltd v Allied Organik Ltd [2003] QDC 420 at paragraph 5.

[15]Plaintiffs’ outline of argument, paragraph 2.6.

[16]Exhibit B to the Affidavit of David Andrew Love filed 18 December 2020.

[17]Plaintiffs’ Outline of Submissions, paragraph 2.12.

[18][1990] 1 Qd R 297 at 299.

[19]Way & Anor v Primo Rossi Pty Ltd & Anor [2018] QCA 203 at [9] per Brown J (Morrison and Philippides JJA agreeing) approving Sparkman’s Electricity Pty Ltd & Ors v Habershon [2017] QSC 156 at [6] per McMeekin J applying Kaats v Caelers [1966] Qd R 482 at 486-7 per Lucas J, confirmed on appeal [1966] Qd R 482 at 494 per Hanger J and at 499 per Stable J (with whom Mack CJ agreed) in respect of Order 90, rule 9 of the former Rules of the Supreme Court.

[20][2000] QCA 178.

[21][2009] QSC 318.

[22][1990] 1 Qd R 418 at 420.

[23][1999] QSC 372.

[24]Exhibit JB-5 to the Affidavit of Joshua David Brown filed 16 March 2020.

[25]Kizbeau Pty Ltd & Ors v WG&B Pty Ltd & Anor (1995) 184 CLR 281 at 290 per Brennan, Deane, Dawson, Gaudron and McHugh JJ. 

[26]Compare Alati v Kruger (1955) 94 CLR 216 at 222 per Dixon CJ, Webb, Kitto and Taylor JJ. 

[27]A more than curious feature of the contract is that it contains no express statement to the effect that the seller and buyer, respectively, agree to sell and buy the property; but that must be the only construction of the contract open and to the extent that the property includes land, the Contract of Sale of House and Land is sufficient written memorandum of the contraction to satisfy s 59 of the Property Law Act 1974.

[28]Item 19.

[29]Compare Fletcher v Manton (1940) 64 CLR 37 at 49 per Dixon J and 50-51 per McTeirnan J.

[30]Section 62(1) Land Title Act 1994 (Qld).

[31]Sections 182 and 184(1) Land Title Act 1994 (Qld). 

[32]Hobson v Gorring (1897) 1 Ch 182; North Shore Gas Co Ltd v Commissioner for Stamp Duties (NSW) (1940) 63 CLR 52 at 68 per Dixon J. 

[33]Defence of the second defendant, paragraph 2(a).

[34]Defence of the second defendant. paragraph 2(b). 

[35]Defence of the second defendant, paragraph 5.

[36]Defence of the second defendant, paragraph 8(b).

[37]Defence of the second defendant, paragraph 8(c).

[38]Defence of the second defendant, paragraph 9(b), (c) and (d). 

[39]Defence of the second defendant, paragraph 12.

[40]Defence of the second defendant, paragraph 12(a).

[41]Defence of the second defendant, paragraph 14.

[42]Defence of the second defendant, paragraph 15. 

[43]Defence of the Second defendant, paragraph 16.

[44]Defence of the Second Defendant, paragraph 17.

[45]Defence of the Second Defendant, paragraph 17.

[46](1995) 184 CLR 281 at 291.

[47][2013] QSC 240 at [52].

[48](2004) 217 CLR 640 at 657 per Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ.

[49]HTW Valuers (Central Queensland) Pty Ltd v Astonland Pty Ltd at [35] – [39].

[50]Plaintiffs’ outline of argument, paragraph 3.9.

[51]Exhibits G, H and I to the Affidavit of Dave Andrew Love filed 18 December 2020 in relation to the First Defendants’ request for disclosure and Exhibit JB-13 and JB-15 to the supplementary affidavit of Joshua David Brown filed 19 March 2021 and Exhibit A to the Affidavit of David Andrew Love filed 18 December 2020 in relation to the Second Defendant’s request.

[52]Supra at [46].

[53]Plaintiffs’ Outline of Argument, paragraph 3.11.

[54][1999] 2 Qd R 113 at 124.

[55]Affidavit of Nyssa Kimberley De Waard filed 16 March 2021, [11] and [12].

[56](1996) 186 CLR 541 at 551.

Close

Editorial Notes

  • Published Case Name:

    Black & Black v De Waard & De Waard & Anor

  • Shortened Case Name:

    Black & Black v De Waard & De Waard

  • MNC:

    [2021] QDC 138

  • Court:

    QDC

  • Judge(s):

    Horneman-Wren SC DCJ

  • Date:

    15 Jul 2021

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
Alati v Kruger (1955) 94 CLR 216
2 citations
Jump To
Cite 1 - (1955) 94 CLR 216
Cite 2 - (1955) 94 CLR 216
Artahs Pty Ltd v Gall Standfield & Smith (A Firm)[2013] 2 Qd R 202; [2012] QCA 272
2 citations
Jump To
Cite 1 - [2013] 2 Qd R 202
Cite 2 - [2013] 2 Qd R 202
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
2 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 593
2 citations
Jump To
Cite 1 - [1992] 1 Qd R 593
Cite 2 - [1992] 1 Qd R 593
Concord Park Pty Ltd v Allied Organik Ltd [2003] QDC 420
3 citations
Jump To
Cite 1 - [2003] QDC 420
Cite 2 - [2003] QDC 420
Cite 3 - [2003] QDC 420
Cooper v Hopgood & Ganim[1999] 2 Qd R 113; [1998] QCA 114
1 citation
Jump To
Cite 1 - [1999] 2 Qd R 113
Cooper v Hopgood Ganim [1992] 2 Qd R 113
1 citation
Jump To
Cite 1 - [1992] 2 Qd R 113
Dempsey v Dorber[1990] 1 Qd R 418; [1989] QSCFC 92
2 citations
Jump To
Cite 1 - [1990] 1 Qd R 418
Cite 2 - [1990] 1 Qd R 418
Fletcher v Manton (1940) 64 CLR 37
2 citations
Jump To
Cite 1 - (1940) 64 CLR 37
Cite 2 - (1940) 64 CLR 37
Hobson v Gorringe (1897) 1 Ch 182
2 citations
Jump To
Cite 1 - (1897) 1 Ch 182
Cite 2 - (1897) 1 Ch 182
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640
3 citations
Jump To
Cite 1 - (2004) 217 CLR 640
Cite 2 - (2004) 217 CLR 640
Cite 3 - (2004) 217 CLR 640
Kaats v Caelers [1966] Qd R 482
3 citations
Jump To
Cite 1 - [1966] Qd R 482
Cite 2 - [1966] Qd R 482
Cite 3 - [1966] Qd R 482
Kizbeau Pty Ltd v W G & B Ltd (1995) 184 CLR 281
3 citations
Jump To
Cite 1 - (1995) 184 CLR 281
Cite 2 - (1995) 184 CLR 281
Cite 3 - (1995) 184 CLR 281
Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372
2 citations
Jump To
Cite 1 - [1999] QSC 372
Cite 2 - [1999] QSC 372
North Shore Gas Co. Ltd v Commissioner of Stamp Duties (N.S.W.) (1940) 63 CLR 52
2 citations
Jump To
Cite 1 - (1940) 63 CLR 52
Cite 2 - (1940) 63 CLR 52
Porzuczek v Toowoomba District Health Services [2007] QSC 177
2 citations
Jump To
Cite 1 - [2007] QSC 177
Cite 2 - [2007] QSC 177
Seirlis v Bengtson [2013] QSC 240
2 citations
Jump To
Cite 1 - [2013] QSC 240
Cite 2 - [2013] QSC 240
Smiley v Watson[2002] 1 Qd R 560; [2001] QCA 269
2 citations
Jump To
Cite 1 - [2002] 1 Qd R 560
Cite 2 - [2002] 1 Qd R 560
Sparkman's Electrical Pty Ltd v Habershon [2017] QSC 156
2 citations
Jump To
Cite 1 - [2017] QSC 156
Cite 2 - [2017] QSC 156
Taylor v State of Queensland [2009] QSC 318
2 citations
Jump To
Cite 1 - [2009] QSC 318
Cite 2 - [2009] QSC 318
Tyler v Custom Credit Corp Ltd [2000] QCA 178
2 citations
Jump To
Cite 1 - [2000] QCA 178
Cite 2 - [2000] QCA 178
Way v Primo Rossi Pty Ltd [2018] QCA 203
2 citations
Jump To
Cite 1 - [2018] QCA 203
Cite 2 - [2018] QCA 203
Wright v Ansett Transport Industries Ltd [1990] 1 Qd R 297
2 citations
Jump To
Cite 1 - [1990] 1 Qd R 297
Cite 2 - [1990] 1 Qd R 297

Cases Citing

Case NameFull CitationFrequency
LK Smith Holdings Pty Ltd v FJA Holdings Pty Ltd [2025] QSC 182 1 citation
State of Queensland (Queensland Health) v Workers' Compensation Regulator [2024] QIRC 102 citations
1

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