Village National Smart Stay Properties Pty Ltd v Smart Stay Villages Pty Ltd
[2013] QSC 34
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- Unreported Judgment
- Appeal Determined (QCA)
- Village National Smart Stay Properties Pty Ltd v Smart Stay Villages Pty Ltd[2013] QSC 34
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Village National Smart Stay Properties Pty Ltd v Smart Stay Villages Pty Ltd[2013] QSC 34
Village National Smart Stay Properties Pty Ltd v Smart Stay Villages Pty Ltd[2013] QSC 34
SUPREME COURT OF QUEENSLAND
CITATION: | Village National Smart Stay Properties Pty Ltd v Smart Stay Villages Pty Ltd [2013] QSC 34 |
PARTIES: | VILLAGE NATIONAL SMART STAY PROPERTIES PTY LTD |
FILE NO/S: | 9668 of 2012 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED EX TEMPORE ON: | 5 February 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 February 2013 |
JUDGE: | Atkinson J |
ORDER: |
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CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the defendant vendor entered into an agreement with the plaintiff purchaser for the purchase of a business – where clause 5 of the contract referred to an accommodation services agreement – where the plaintiff claimed that the failure of the defendant to assign its interest in the accommodation services agreement to the purchaser upon completion was a default by the vendor pursuant to the terms of the contract – whether the plaintiff had no real prospect of succeeding in all or part of its claim Uniform Civil Procedure Rules 1999 (Qld), r 292, r 293 Maguire v Racing Queensland Limited [2012] QSC 219, considered |
COUNSEL: | R J Douglas SC, with J Meredith, for the applicant |
SOLICITORS: | Griffiths Parry Lawyers and Notary for the applicant |
HER HONOUR: This is an application by the defendant, Smart Stay Villages Pty Ltd (Smart Stay Villages), for judgment against the plaintiff pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (UCPR).
Rule 293 of the UCPR provides:
"(1)A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.
(2)If the court is satisfied –
(a)the plaintiff has no real prospect of succeeding on all or a part of the plaintiff's claim; and
(b)there is no need for a trial of the claim or the part of the claim;
the court may give judgment for the defendant against the plaintiff for all or part of the plaintiff's claim and may make any other order the court considers appropriate."
This is the corollary of r 292 which provides that a plaintiff may apply for judgment against the defendant. These rules have been the subject of a surprising amount of legal exegesis in this court which it is unnecessary for me to consider in great detail in this case. I have already expressed my views most recently in Maguire v Racing Queensland Limited [2012] QSC 219 on an application by a defendant under rule 293 and there is no need for me to repeat the views I there expressed, views which I still hold.
Let me turn to the wording of the rules. In order for a defendant to obtain summary judgment, the defendant must satisfy the Court that the plaintiff has no real prospect of succeeding on all or a part of the plaintiff's claim.
Secondly, the defendant must satisfy the Court that there is no need for a trial of the claim or the part of the claim and, thirdly, in circumstances where the Court is satisfied of those matters, it has a discretion to give judgment for the defendant which, of course, means that it retains a discretion to refuse to give judgment.
The defendant has applied for summary judgment on the basis that the plaintiff's pleaded case is doomed to fail. About halfway through oral argument for the defendant, senior counsel for the plaintiff informed the defendant and the Court that he did not seek to rely on a section of the pleading which pleaded that one of the special conditions of the contract was a condition precedent to the making of an enforceable contract.
That concession was wisely made since the defendant was unarguably correct in his submission on that point. This led to plaintiff's counsel taking advantage of the luncheon adjournment to draft and settle a proposed amended statement of claim. Leave for the plaintiff to file and rely upon the amended statement of claim was not opposed. That amendment had the effect of narrowing the defendant's argument to, essentially, one point which I will elaborate on in due course.
Let me say something first about the factual circumstances and the nature of the dispute. It is unnecessary to go into all the factual background to the dispute. Many documents are before me but are unnecessary to decide the narrow point which I have to decide.
Suffice it to say that on 8 August 2012, the defendant, as vendor, entered into an agreement with the purchaser, Village National Smart Stay Properties Pty Ltd (Village National) for the purchase of a business including land and buildings.
The contract provided for the sale of land in Moranbah which was being used as an accommodation building. The sale of the business conducted thereon referred to the special conditions. Annexure A set out special conditions. Those conditions that are relevant for these purposes are found, particularly, in clauses 2 and 5.
Clause 2 provided with regard to the deposit, "The parties hereto agree that the Deposit (and any part thereof) is once paid, non-refundable in any circumstances other than default by the Vendor pursuant to the terms of this Contract."
Clause 5 referred to what is there called the accommodation services agreement. The accommodation services agreement is in the material before me and was, one might deduce, a significant part of what was being sold since it was an agreement between the vendor and BM Alliance Coal Operations Pty Ltd (BM Alliance Coal). BM Alliance Coal represented the companies which conduct coal mining operations at Moranbah, a town in central Queensland which exists for the purpose of coal mining. The agreement provided obligations on Smart Stay villages to provide accommodation and on BM Alliance Coal to take accommodation at the accommodation village which, one would think, would have been an important part of the income stream of the business.
Clause 5, which referred to the accommodation services agreement, provided as follows:
"5.1 This contract is subject to and conditional upon:
5.1.1 the assignment of the vendor's interest in the accommodation services agreement to the purchaser upon completion.
5.2 In the event that condition 5.1.1 is not satisfied by the due date stipulated therein, either party hereto may be [sic] notice in writing to the other terminate this contract."
The accommodation services agreement, as I have said, was an agreement between the vendor and BM Alliance Coal. No doubt both the purchaser and the vendor were impliedly obliged by that clause to use their best endeavours to effect the assignment but, nevertheless, the contract provides that it was subject to that assignment taking place not the parties using their best endeavours to do so.
The assignment did not take place by the due date and the purchaser exercised its right to terminate the contract. The dispute in this litigation is as to whether or not the purchaser has the right to have the deposit refunded to it; so the question is whether the circumstances in clause 2 which would allow - or require - refund of the deposit have arisen.
Clause 2 is in slightly unusual terms in that the only circumstance in which the deposit will be refunded is if there is a default by the vendor pursuant to the terms of this contract.
In order for the defendant to succeed on a summary judgment application, it must show that the plaintiff has no real prospect of succeeding in its claim that the failure of the defendant to assign its interest in the accommodation services agreement to the purchaser upon completion, was a default by the vendor pursuant to the terms of the contract.
In my view, it could not be said that the plaintiff has no real prospect of succeeding on that argument. It is arguable that the failure of the defendant to assign its interest could be considered a default by it. I am therefore not satisfied that the plaintiff has no real prospect of succeeding on that part of its claim.
In those circumstances, I decline to give judgment for the defendant against the plaintiff.
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HER HONOUR: I will dismiss the application for summary judgment. Costs will be costs in the cause.
In view of the amount in dispute, the parties have consented to the matter being transferred to the District Court.
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