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Savoy Invest Qld Pty Ltd v Global Nominees Pty Ltd[2008] QSC 56

Savoy Invest Qld Pty Ltd v Global Nominees Pty Ltd[2008] QSC 56

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Savoy Invest Qld P/L as trustee v Global Nominees P/L as trustee [2008] QSC 56

PARTIES:

SAVOY INVESTMENTS QLD PTY LTD
ACN 102 948 792 AS TRUSTEE
(applicant)
v
GLOBAL NOMINEES PTY LTD
ACN 107 422 088 AS TRUSTEE
(respondent)

FILE NO:

2162/08

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 March 2008

DELIVERED AT:

Brisbane 

HEARING DATE:

19 March 2008

JUDGE:

Lyons J

ORDER:

The declarations sought in paragraphs 1 to 7 of the Originating Application are not made.

The application is dismissed in relation to paragraphs 1 to 7 of the Originating Application.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – parties entered into a contract with conditions relating to the assignment of “the current lease” – details of lease were given in a schedule to the contract – lease had been terminated prior to the contract being entered into and another lease was entered into – purchaser knew of subsequent lease – which lease was intended to be “the current lease” for the purpose of the conditions

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – ILLEGAL AND VOID CONTRACTS – EFFECT OF ILLEGALITY OR INVALIDITY – IN GENERAL – condition of contract provided that deposit be released to vendor on the “unconditional date” – “unconditional date” not defined in contract – whether condition is contrary to s 384 and s 385 of the Property Agents and Motor Dealers Act 2000 (Qld) and is illegal

Property Agents and Motor Dealers Act 2000 (Qld), s 384 and s 385

DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12, cited

Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 18 CLR 429; [1968] HCA 8, cited

Mediservices Clinics Pty Ltd v Health24 Pty Ltd [1999] NSWCA 198, cited

COUNSEL:

PW Hackett for the applicant

JB Sweeney for the respondent

SOLICITORS:

Robinson & Robinson for the applicant

Hickey Lawyers for the respondent

LYONS J:

Nature of the application

  1. The applicant as purchaser under a contract to purchase a commercial building seeks declarations as to its right to terminate the contract and orders in relation to the deposit paid pursuant to the contract.

Facts

  1. The applicant, Savoy Investments Qld Pty Ltd, (“Savoy”) as purchaser and the respondent, Global Nominees Pty Ltd, (“Global”) as vendor are parties to a contract dated 10 September 2007 (“the Contract”) for the sale of commercial premises at 10 Ivan Street, Labrador (“the Property”) for the sum of $2.4 million.  Settlement is scheduled for 31 March 2008.
  1. The sale is subject to a lease of the premises.
  1. In the Interpretation section of the Contract, clause 1.1(q) provides that:

“‘Lease’ means all leases, subleases, agreements for lease, agreements for sublease and tenancy agreements whether oral or in writing, and as the context admits, licences and rights to occupy and which are set out in the Lease Schedule;”

  1. Paragraph 3 of the first page of the Contract provides:

“‘Unless inconsistent with the context or subject matter’  ‘Lease Schedule’ means the schedule called the Leased (sic) Schedule in this contract.’”

  1. The Lease Schedule makes reference to Clause 32 of the Standard Commercial Conditions and set out the following particulars in relation to the Property:

“Lease 1:

Property:10 Ivan Street, Labrador;

Tenant:Migaris Composites Pty Ltd;

Use:Marine Industry;

Location:Whole of property;

Area of tenancy:3,750m2 including all buildings;

Current Rental per annum:$200,000;

Current Lease

Commencement Date:1 June 2007;

Current Lease Term:five years;

Remaining Options:five years.”

  1. The Special Conditions of the Contract are as follows:

“ 1. Due Diligence – See attached Annexure A.

  1. Initial deposit of $50,000.00 and a balance of $150,000 on unconditional date to be released to the vendor on unconditional date.
  1. This contract is subject to the Vendor prior to settlement hereof arranging for an assignment of the current Lease to Mustang Marine with such lease as is assigned to be guaranteed by the Directors of that company.
  1. Simultaneously with the Assignment referred to in Special Condition 3 hereof the Vendor shall procure the Assignee to enter into a Deed of Variation of the said Lease to provide that the Lease may thereafter be terminated by the Landlord by giving six (6) months written notice that intent to the Tenant, and that the Tenant may terminate the Lease by giving six (6) months notice to the Landlord.

In the event that the Landlord gives such notice then the Landlord shall have first option to negotiate and to offer the Tenant a Lease of alternative premises.

Should the Tenant give six (6) months notice to terminate then the tenant shall compensate the landlord by way of a one off payment equate to 50% of the balance of rent payable in accordance with the lease.”

  1. Annexure A to the Special Conditions headed “Due Diligence” stated:

“(i) This Contract is subject to conditions upon the Purchaser conducting investigations and enquiries (‘the enquiries’) with respect to the property the subject of this contract and all matters relating thereto and being satisfied in all respects with the results of the enquiries including and without limitation:

…

(d)any lease and/or license agreements relating to any tenancies of the property;

…

(iv) The parties agree that the Purchaser shall be allowed a period of 21 days in which to conduct the enquiries.

(v) If the Purchaser is not satisfied in all respects with the results of enquiries then the Purchaser may, in its absolute discretion and without being required to give any reason, deliver written notice to the Vendor at any time on or before 5pm on the date being 21 days from the date of this Contract terminating this Contract.  In the event that agreement shall be at an end, all monies paid by the Purchaser to the Stakeholder/deposit holder shall be refunded in full to the Purchaser and thereafter neither party shall have any further claim or action against the other apart from a claim based on default by one party under the Contract prior to such termination.

(vi)

…

(vii) In the event that the Purchaser fails to give the written notice referred to in clauses (v) or (vi) by the time limitation referred to in clause (v) then the contract shall become unconditional and neither party shall have any claim thereafter against the other apart from a claim based on a default by one party under the Contract prior to such termination.”

  1. The Contract also included the Standard Commercial Conditions which at Clause 32.1 and 32.2 relevantly provided:

“32PROPERTY SOLD SUBJECT TO LEASES

32.1Vendor’s Statement

Where the Property is sold subject to any Lease …, the Vendor states that, except as disclosed in this Contract, each of the following statements shall be accurate at the Date for Completion:

(a)the particulars in the Lease Schedule … are true and correct;

(b)…

(c)that all Leases … have been disclosed to the Purchaser prior to the execution of this Contract;

(d)…

(e)…

32.2Inaccurate statement

If a statement contained in clause 32.1 is not accurate then the Purchaser may terminate this Contract by notice in writing to the Vendor.

32.3 Acceptance of Lease and Service Contract Terms

(1) Within 7 days of he date of this Contract, the Vendor will deliver to the Purchaser or the Purchaser’s solicitor true copies of all Leases and Service Contracts together with a written statement that they constitute the whole of every agreement or arrangement with each of the tenants stated in those Leases or with each of the Service Contractors in those Service Contracts.

…

(3) If the Purchaser does not give written notice to the vendor pursuant to clause 32.3(2)(a) or 32.3(2)(b), the Purchaser agrees to be bound by the terms and conditions of each Lease and Service Contract disclosed by the Vendor in the Lease Schedule and the Service Contract Schedule from the Date for Completion as if the Purchaser were named as lessor in such Lease or as a contracting party in such Service Contract in substitution for the Vendor.”

  1. The sole Director of the respondent vendor company Global Nominees Pty Ltd, which was incorporated on 17 December 2003, is Paul Scanlon (“Scanlon”). He is also the sole director of Mustang Marine Nominees Pty Ltd (“Mustang Marine Nominees”) which was incorporated on 9 January 2007.
  1. At the date of the Contract Scanlon was also a director of Mustang Group Pty Ltd (incorporated 8 December 2005) and its subsidiary companies. At 10 September 2007 Mustang Group Pty Ltd had a number of subsidiary companies namely;
  1. Mustang Marine Pty Ltd which was the entity which carried on a boat manufacturing business at Molendinar, a subsidiary of which was Mustang Sales Gold Coast Pty Ltd which was the Gold Coast dealership which operated from the Runaway Bay Marina.
  1. Mustang Marine Holdings Pty Ltd which owned the brand “Mustang Marine” and owned some of the moulds for the boats and conducted the research and development activities of the Mustang Group., a subsidiary was Mustang Marine Sports Flybridge Pty Ltd.
  1. Mustang Marine International Pty Ltd which undertook international sales of the boats and had a subsidiary Mustang Marine Inc which was responsible for sales in the United States of America.
  1. On 17 April 2007 Migaris Composites Pty Ltd (“Migaris”) entered into a contract termed the “Mustang Marine Manufacturing Agreement” with Mustang Marine Pty Ltd to make fibreglass parts for Mustang Marine Pty Ltd’s manufacturing business. The respondent Global, through its director Scanlon, organised the purchase of the Property and arranged for Migaris to take possession of the property. Settlement of Global’s purchase of the Property took place on 21 May 2007.
  1. Global had entered into a lease dated 1 May 2007 with Migaris (“Migaris Lease”) with the start date of the lease as 1 June 2007 after Migaris had a one month rent free period. This lease provided that Global could terminate the lease at any time should the Migaris agreement with Mustang Marine Pty Ltd be terminated or come to an end. On 16 August 2007 Mustang Marine Pty Ltd gave formal written notice to the manager of Migaris that the Mustang Marine Manufacturing Agreement was terminated “effective immediately”. Migaris vacated the premises the same day. Global retook possession of the Property and Mustang Marine Nominees started making the fibreglass parts for supply to Mustang Marine Pty Ltd. Mustang Marine Nominees paid rent to Global at the same rate as Migaris but did not at that time enter into a lease.
  1. The board of Mustang Marine Pty Ltd raised concerns that Scanlon had a conflict of interest in these arrangements and Scanlon therefore decided to sell the Property. He provided the selling agent Colliers International Real Estate (Colliers) with a copy of the Migaris Lease as the operative Lease.[1] 
  1. At the time the contract with the applicant purchaser was negotiated, the Migaris lease of the premises between the vendor and Migaris was provided to Kevin Jury, (“Jury”) the director of the applicant purchaser who had undertaken all negotiations on its behalf. The Migaris lease contains a guarantee.
  1. Prior to the execution of the Contract on 10 September 2007 Jury knew however that Migaris was no longer the tenant at the Property and he understood from the negotiations that Mustang Marine had terminated the subcontract with Migaris. He also understood that Mustang Marine had taken over the operations previously performed by Magaris and would operate from the property.[2]
  1. By letter dated 18 September 2007 the solicitors for the vendor advised the solicitors for the purchaser that due diligence was due on 1 October with the balance deposit of $150,000 payable when the contract became unconditional.
  1. On 19 September 2007, which was during the due diligence period, the vendor’s solicitors provided the purchaser’s solicitors with a copy of the signed Mustang Marine Nominees lease relating to the Property which was previously provided to the vendor’s agent on 12 September 2007. The letter also advised “…the attached Lease constitutes the whole of every agreement with the tenant and there are no service contracts in place.” The Lease was for the term 7 September 2007 to 6 September 2012 at an annual rental of $200,000 + GST and outgoings and was dated 8 September 2007 (“the new lease”).
  1. At this point it should be noted that the new lease:

(a)bears a date 8 September 2007, two (2) days before the contract was entered into but the solicitor who prepared the lease did not receive instructions until 10 September 2007;

(b)contains no guarantee;

(c)the lessor and the lessee have the same sole director Scanlon and it was signed in both capacities with a different signature for each.

  1. On 2 October 2007 the solicitors for the vendor advised the solicitors for the purchaser that the due diligence period had expired and that the contract was unconditional in all respects. There was no objection to that advice and on 4 October 2007 the purchaser’s solicitors instructed the stakeholder, Colliers, to release the full $200,000 to the vendor in the following terms “We now authorise release of the deposit to or at the direction of the Vendor”. They provided a copy of this letter to the solicitors for the purchaser on the same day and advised “In due course we shall prepare and forward Transfer documentation.”[3]    
  1. As previously indicated Mustang Marine Nominees Pty Ltd is a company who has Scanlon as its sole director and shareholder and this company is not the boat building enterprise known as Mustang Marine Pty Ltd.
  1. The vendor Global Nominees Pty Ltd is also a company who has Scanlon as its sole director and shareholder.
  1. Mustang Marine Pty Ltd and Mustang Group Pty Ltd were placed into external administration on 10 October 2007 and the Mustang Marine boat building business was disposed of by the external administrators and is now conducted by Standard Bank Asia. Mustang Marine Nominees has not been placed in receivership or under similar administration.
  1. The nature of the dispute which has arisen is contained in the correspondence between the parties. A letter from the vendor’s solicitors on 29 October 2007 to the purchasers solicitors advised as follows;
  1. That the special condition in the contract in relation to the lease was drafted in that way before it was agreed between the parties that a lease would be entered into directly with Mustang Marine Nominees Pty Ltd.
  1. A new lease was prepared and entered into between the landlord and Mustang Nominees in lieu of the assignment contemplated.
  1. The lease was acceptable to the purchaser.
  1. Mustang Marine Nominees has not been placed into receivership.
  1. The relevant lease was provided to the purchaser during due diligence and pursuant to the terms of the contract.
  1. No objection was made to the lease.
  1. A letter from the solicitors for the purchaser dated 14 December 2007 to the solicitors for the vendor contended that Special Condition 3 makes the Contract subject to the current lease being assigned and that the assignment was to be to Mustang Marine Pty Ltd and not Mustang Marine Nominees. Furthermore they contend that the new lease is in breach of Special Condition 3, and is not with the correct company and was never acceptable to the purchaser.
  1. Essentially the purchasers contend that there has been no agreement to vary the conditions of the Contract. Furthermore the purchaser contends that the new lease does not satisfy the requirements of the Special Conditions in a number of material respects:-

(a)First, it is not an assignment of the Migaris lease and amended in accordance with Special Condition 4;

(b)Secondly, it is not a lease by “Mustang Marine” as that term was represented to Jury, and

(c)Thirdly, there is no guarantee

  1. The purchaser contends that the attitude of the vendor is an anticipatory breach of Special Conditions 3 and 4 of the Contract or conduct in repudiation of the same in that it evinces an intention of the vendor:

(a)not to assign the Migaris lease;

(b)not to assign the new lease;

(c)not to procure any directors guarantee.

  1. The purchaser’s solicitors wrote to the solicitors for the vendor in respect of that conduct, inviting the vendor to withdraw the same and reserving the purchaser’s rights should the vendor fail to do so.
  1. The vendor has refused to alter its position. The purchaser submits that the anticipatory breach of the contract in the circumstances is also a repudiation of the contract.[4]
  1. The position of the applicant was summarised by Counsel at the hearing in the following terms:

“Had the contract been followed, and the Magaris lease assigned under its terms to whichever Mustang Company, my client would have a Deed of Covenant from the old tenant, Magaris, its guarantor, the new company and its directors plural, on a commercial premises being acquired for 2.4 million dollars at an annual tenancy of $200,000 a year, for a five year term and a five year option, a fairly valuable commercial commodity and what is contended her is that my client must complete with a lease that has no guarantees to a two dollar company.  Its not a very attractive proposition commercially…”

Relief sought

  1. The applicant purchaser seeks the following relief;
  1. A declaration that upon the proper construction of the Contract between the Applicant and the Respondent dated 10 September 2007 the words “current Lease” described in special condition 3 of the Contract means the lease described in the Lease Schedule to the Contract between the Respondent and Magaris Composites Pty Ltd. 
  1. A declaration that the description of the lease contained in the Lease Schedule to the Contract is not accurate.
  1. A declaration that the applicant is entitled to terminate the Contract pursuant to clause 32.2 because of the inaccuracy in paragraph 1 above.
  1. A declaration that the lease entered into between the Respondent and Mustang Marine Nominees Pty Ltd on 8 September 2007 does not satisfy the requirements of the Special Conditions to the Contract.
  1. A declaration that the Applicant is entitled to terminate the Contract because of the matter in paragraph 4 above.
  1. A declaration that the Respondent’s insistence that the lease entered into between the Respondent and Mustang Nominees Pty Ltd on 8 September 2007 does satisfy the requirements of the Special Conditions to the Contract is an anticipatory breach of the Contract and/or conduct evincing an intention not to be bound by the Contract and therefore a repudiation of the same.
  1. A declaration that the Applicant is entitled to terminate the Contract because of the conduct in paragraph 6 above.
  1. A declaration that Special Condition 2 of the Contract is contrary to sections 384 and 385 of the Property Agents and Motor Dealers Act 2000
  1. An order that the Respondent repay to Colliers International Real Estate the deposit monies of $200,000.00.
  1. Such further or other order as the Court considers appropriate.
  1. Costs.

The respondent’s submissions

  1. The respondent contends that the applicant is not entitled to any of the declarations sought because the vendor has not repudiated the agreement and has not committed any anticipatory breach of any essential term of the agreement which is yet to be performed. The respondent essentially contends that the lease entered into between Global and Mustang Nominees is intended to be compliance with the special conditions of the contract.

Relevant findings

  1. It is clear from the affidavit material that as at 10 September 2007, which was the date of the contract, Jury knew that Migaris was no longer the tenant at the Property and that an entity known as “Mustang Marine” was in occupation.[5]
  1. It is also clear that Jury negotiated a due diligence condition that allowed the purchaser to undertake extensive investigations including investigations to allow it to be satisfied in all aspects with any lease agreements including any tenancies of the property.
  1. Furthermore on 19 September 2007, during the due diligence period, the purchasers were not only aware of the Mustang Marine Nominees Pty Ltd (ACN123380996) lease but were provided with a copy of the 33 page lease which was in similar terms to the 34 page Migaris lease but did not include a guarantor at clause 11 on page two. Whilst the Lease is dated 8 September 2007 it is clear that the lease only came into existence after the date of the contract[6]. 
  1. This new lease included new provisions at clauses 22 and 23 regarding termination rights of the Landlord and Tenant which were consistent with the Special Conditions of the Contract and were couched in terms to achieve the same effect as the variation and “assignment of the current lease to Mustang” which was envisaged by Special Condition 3 and 4 of the Contract. These clauses were different to the termination clause 22 in the Migaris lease.
  1. I consider the relevant analysis is as follows:
  1. The Contract was clearly for the sale of property subject to a lease which had been to Migaris.
  1. The purchaser at the date of the Contract on 10 September knew that Migaris was no longer in occupation.
  1. The Contract was conditional on the assignment of the lease to “Mustang Marine” pursuant to Special Condition 3.
  1. The Contract at clause 32.2 gave the purchaser the right to terminate if the Lease Schedule was inaccurate.
  2. The Contract pursuant to Special Condition 1 and Annexure A clauses (i) and (iv) gave the purchaser 21 days to satisfy itself about the lease.
  3. On 19 September 2007 the vendor’s solicitors gave the purchaser’s solicitors a copy of the Mustang Marine Nominees lease.  This lease clearly demonstrated that the Lease Schedule was inaccurate (if the purchaser did not already know that) and that it would be inaccurate at the Date of Completion.
  1. The purchaser did not then terminate the Contract.
  1. The due diligence period expired on 31 September 2007 and the purchasers gave no notice that they were not satisfied of the results of enquiries during the due diligence period.
  1. Clause (vii) of the Special Conditions provided in default of the purchaser giving such notice  “…the contract shall become unconditional and neither party shall have any claim hereafter against the other, apart from a claim based on a default by one party under the contract prior to such termination.”
  1. The balance deposit was then paid and on 4 October 2007 the purchaser gave Collier’s instructions to release the deposit to the vendor.
  1. By its actions the purchaser affirmed the contract and lost any right to rely on the Mustang Marine Nominees lease to terminate. In releasing the full deposit, with knowledge of the terms of the Mustang Marine Nominees lease, the purchaser must be taken to have waived the requirement for the assignment and deed of variation of the Migaris lease prior to settlement. Furthermore, the purchaser must be taken to have agreed under clause 32.3.3 to be bound by, and entitled to the benefit of the Mustang Nominees lease from the date of possession; and to have approved of Mustang Marine Nominees Pty Ltd being the tenant.
  1. An alternative analysis emerges from a consideration of the terms of the Contract. I am satisfied that considered objectively the parties intention was that any warranty at settlement under clause 32.1 was to the exclusion of matters which had become known to the purchaser during the due diligence period. During the due diligence period the purchaser had a copy of the lease which set out fully the name of the tenant as Mustang Marine Nominees Pty Ltd and not Migaris. The lease also indicated that the lease period commenced on 7 September 2007 and not 1 June 2007 as set out in the Migaris Lease. It also clearly indicated at Item11 on page 2 that there were no guarantors and there were new provisions included in clauses 22 and 23 in relation to termination.
  1. In this regard the vendor’s have relied on the decision of Cole J in Mediservices Clinics Pty Ltd v Health24 Pty Ltd:[7]

“Where the parties thereafter contract, both knowing of the circumstances material to items which might be regarded as unusual or non-recurring, they must be taken to have contracted upon the basis that there is no further obligation to disclose that which has already been disclosed or to record in writing the disclosure previously made orally.”

  1. Paragraph two of the Contract provides that where there is any discrepancy or inconsistency between a part of the Contract then in order to resolve the discrepancy or inconsistency the following descending order of precedence shall apply:
  1. Any special conditions.
  1. Items Schedule
  1. Lease Schedule
  1. Service Contract Schedule
  1. Standard Commercial Conditions
  1. In relation to the right to terminate for inaccuracy contained in Clause 32.2 in the Standard Commercial Conditions it is clear that this clause would not apply if there was a discrepancy with the Special Conditions or it was inconsistent with the Special Conditions.
  1. The applicant purchaser further contends the words “Mustang Marine” are capable of more than one meaning and can mean either the boat building business known as “Mustang Marine” now in external administration or Mustang Marine Nominees which is Scanlon’s company. The applicant relies on what was said by Barwick CJ (with whom McTiernan, Kitto and Windeyer JJ agreed) in Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd:[8]

“A contract of which there can be more than one possible meaning or which when construed can produce in its application more than one result is not void for uncertainty.  As long as it is capable of a meaning, it will ultimately bear that meaning which the court, or in an appropriate case, an arbitrator, decides is its proper construction: and the court or arbitrator will decide its application.  The question becomes one of construction, of ascertaining the intention of the parties, and of applying it.  So long as the language employed by the parties is not so obscure and so incapable of any definite or precise meaning that the court is unable to attribute to the parties any particular contractual intention the contract cannot be held to be void for uncertainty or want of meaning.  In the search for that intention, no narrow or pedantic approach is warranted, particularly in the case of commercial arrangements.  Thus will uncertainty of meaning, as distinct from absence of meaning or of intention, be resolved.”

  1. I am not satisfied that there is in fact uncertainty in this case. Mustang Marine Nominees was clearly in occupation at the time the contract was signed and the lease which was provided to the purchasers on 19 September clearly indicated that Mustang Marine Nominees was the lessee. It was clearly intended that the entity doing the work on the site and in occupation of the site would be the assignee of the lease. That was clearly Mustang Marine Nominees Pty Ltd. Sensibly construed the Contract required an assignment to that entity.
  1. The applicant also submits that there should be declarations that Special Condition 2 of the Contract is contrary to sections 384 and 385 of the Property Agents and Motor Dealers Act 2000 [“PAMDA”] which provide:

“384When payments may be made from trust accounts

(1)An amount paid to a trust account must be kept in the account until it is paid out under this Act.

Maximum penalty – 200 penalty units or 3 years imprisonment

(2)An amount may be paid from a trust account only in a way permitted under this Act.

Maximum penalty – 200 penalty units or 3 years imprisonment

385Permitted drawings from trust accounts

(1)A licensee may draw an amount from the licensee’s trust account to pay the licensee’s transaction fee or transaction expenses in relation to a transaction only if –

(a)the amount is drawn against the transaction fund for the transaction; and

(b)the licensee is authorised to draw the amount under this section.

Maximum penalty – 200 penalty units or 3 years imprisonment.

(2)The licensee is authorised –

(a)to draw an amount from the transaction fund to pay a transaction expense when the expense becomes payable; and

(b)when the transaction is finalised, to draw an amount from the transaction fund that is equal to the difference between –

(i)the balance of the transaction fund; and

(ii)the total of the licensee’s transaction fee and any outstanding transaction expense;

To pay the person entitled to the amount or in accordance with the person’s written direction; and

Example of when transaction is finalised –

The settlement of a contract for the sale of property or the termination of the contract

(c)to draw the licensee’s transaction fee from the transaction fund when the amount, if any, mentioned in paragraph (b) has been paid and when the transaction is finalised.

(3)For subsection (2)(b) or (c), if a dispute about the transaction fund arises, the transaction is not taken to be finalised until the licensee is authorised to pay out the transaction fund under section 388.

(4)The licensee must pay an amount mentioned in subsection (2)(b) to the person entitled to it or in accordance with the person’s written direction –

(a)if the person asks, in writing, for the balance – within 14 days after receiving the request; or

(b)if the person has not asked, in writing, for the balance – within 42 days after the person first had the right to the balance.

Maximum penalty – 200 penalty units or 3 years imprisonment

(5)In this section –

transaction expenses means the expenses the licensee is authorised to incur in connection with the performance of the licensee’s activities for a transaction.

transaction fee means the fees, charges and commission payable for the performance of the licensee’s activities for a transaction.

transaction fund means the amount held in a licensee’s trust account for the transaction.”

  1. Special Condition 2 of the Contract provides:

“Initial deposit of $50,000.00 and a balance of $150,000.00 on unconditional date to be released to the vendor on the unconditional date.”

  1. The “unconditional date” is not defined in the contract however those words have been construed by the parties’ solicitors as the expiry of the due diligence period and I consider this would appear to be what was intended by the Contract.
  1. The intent of Special Condition 2 is to authorise the Stakeholder to pay the Deposit to the vendor prior to completion of the contract (“the payment”) but on the happening of an event namely the contract becoming unconditional.
  1. The payment is neither a licensee’s transaction fee or transaction expense as defined in s 385(5). Accordingly, s 385(1) and s 385(2(a) are not enlivened. The payment would appear to be of a type contemplated by s 385(2(b). That subsection permits such payments when a transaction is finalised.
  1. I am asked to declare that Special Condition 2 is illegal and contrary to sections 384 and 385 of PAMDA and to order the repayment of the $200,000 to Colliers. Colliers is not a party to this proceeding. A declaration that Special Condition 2 is inconsistent with section 384 and 385 may have consequences for it.
  1. I note that the Contract is due to settle on Monday 31 March 2008. If the order for repayment were made the monies would then have to be repaid to the vendor on Monday. I do not see the utility of making such an order. I therefore do not propose to make this declaration or order at this stage. Because the considerations I have mentioned have not been canvassed by the parties, I will invite the applicant to consider whether it wishes to pursue this relief and if so will afford the parties the opportunity to make further submissions about it.

Orders

  1. I decline to make the declarations sought in paragraphs 1 to 7 of the Originating Application.
  1. I dismiss the application in relation to paragraphs 1 to 7 of the Originating Application.
  1. I will hear from the parties further in relation to paragraphs 8 to 11 of the Originating Application.
  1. I will hear from Counsel as to costs.

Footnotes

[1] Affidavit of Paul Scanlon, filed 19 March 2008, paragraphs 16 and 17.

[2] Affidavit of Kevin Jury, filed 11 March, paragraph 7.

[3] Affidavit of David Nematalla, filed 19 March 2008.

[4] DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 19 ALR 223.

[5] Affidavit of Kevin Jury, filed 11 March, paragraph 7.

[6] Affidavit of David Nematalla, filed 19 March 2008, paragraphs 3-4.

[7] [1999] NSWCA 198, 60.

[8] (1968) 118 CLR 429, 429-430.

Close

Editorial Notes

  • Published Case Name:

    Savoy Invest Qld P/L as trustee v Global Nominees P/L as trustee

  • Shortened Case Name:

    Savoy Invest Qld Pty Ltd v Global Nominees Pty Ltd

  • MNC:

    [2008] QSC 56

  • Court:

    QSC

  • Judge(s):

    Lyons J

  • Date:

    28 Mar 2008

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2008] QSC 56 (2008) Q ConvR 69028 Mar 2008Declarations sought in Originating Application not made; application dismissed in relation to other paragraphs of the Originatiing Applicaytion: Lyons J
Appeal Determined (QCA)[2008] QCA 28216 Sep 2008Appeal dismissed with costs; Keane JA, Mackenzie AJA and Dutney J

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12
1 citation
Jump To
Cite 1 - [1978] HCA 12
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 19 ALR 223
1 citation
Jump To
Cite 1 - (1978) 19 ALR 223
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 C.L.R 423
1 citation
Jump To
Cite 1 - (1978) 138 C.L.R 423
Mediservices Clinics Pty Ltd v Health 24 Pty Ltd [1999] NSWCA 198
2 citations
Jump To
Cite 1 - [1999] NSWCA 198
Cite 2 - [1999] NSWCA 198
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429
1 citation
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Cite 1 - (1968) 118 CLR 429
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 18 CLR 429
1 citation
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Cite 1 - (1968) 18 CLR 429
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8
1 citation
Jump To
Cite 1 - [1968] HCA 8

Cases Citing

Case NameFull CitationFrequency
Rolls v Radford [2012] QSC 922 citations
Savoy Investments (Qld) Pty Ltd v Global Nominees Pty Ltd [2008] QCA 282 8 citations
1

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