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La Costa D Oro Pty Ltd v Karananos[2021] QSC 167

La Costa D Oro Pty Ltd v Karananos[2021] QSC 167

SUPREME COURT OF QUEENSLAND

CITATION:

La Costa D Oro Pty Ltd & Anor v Karananos [2021] QSC 167

PARTIES:

LA COSTA D ORO PTY LTD ACN 643 877 267 AS TRUSTEE FOR THE LA COSTA D ORO TRUST

(first plaintiff)

THE DEVELOPMENT COLLECTION PTY LTD ACN 627 786 798 AS TRUSTEE FOR THE DEVELOPMENT COLLECTION TRUST

(second plaintiff)

v

JENNY KARANANOS

(defendant)

FILE NO/S:

BS No 648 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

20 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 June 2021

JUDGE:

Williams J

ORDER:

The orders of the Court are that:

  1. The defendant’s application dated 20 May 2021 is dismissed.
  2. Pursuant to rules 375 and 377(1)(c) of the UCPR, the plaintiffs have leave to amend the Claim and Statement of Claim as set out in Exhibit “NJK1” to the Affidavit of Nathan James Kershler sworn 24 May 2021.

Further, the Court directs that:

  1. The parties are to confer on the appropriate costs order and, if agreed, a draft order is to be provided to my Associate.
  2. If the parties are unable to agree on the appropriate costs order, then each party is to provide brief written submissions on costs within 7 days.

CATCHWORDS:

REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – REMOVAL – PARTICULAR CASES – where the second plaintiff and the defendant entered into an unconditional contract for the sale of residential land at Paradise Point – where the plaintiff requested a change to the buying entity under the contract and asked if the defendant would enter into a deed of rescission and new contract of sale to effect the name change – where the defendant verbally agreed to rescind the contract and enter into a new contract with the first plaintiff as the new buying entity – where a dispute arose in relation to the payment of the last instalment of the deposit – where the defendant purported to terminate the original contract in December 2020 – where the first plaintiff lodged caveats over the property in December 2020 claiming an estate in fee simple as purchaser – where the plaintiffs sent to the defendant a draft originating application seeking relief in respect of the agreement with the first plaintiff and alternatively the original contract with the second plaintiff – where the defendant withdrew the purported termination of the original contract – where the defendant filed an application in April 2021 to have the caveats lodged by the first plaintiff removed – where consent orders were made dismissing the application in respect of the caveats lodged by the first plaintiff – where the second plaintiff lodged caveats over the property in April 2021 asserting an interest in the performance of the contract of sale – where the defendant applies to have the caveats lodged by the first plaintiff removed – where the defendant applies to remove the two caveats lodged by the first plaintiff – whether the first plaintiff as caveator satisfied the Court that there is a serious question to be tried as to whether its claimed interests exist and the balance of convenience favours maintenance of the caveats

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – GENERALLY – where the first and second plaintiffs apply for leave to amend the amended claim and statement of claim – where the amended statement of claim attempts to entirely replace the original statement of claim – whether leave should be granted

Land Title Act 1994 (Qld), s 122, s 127

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 375, r 377

Burman v AGC (Advances) Ltd [1994] 1 Qd R 123, cited

Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58, cited

Goodwin v Gilbert & Ors [2000] QSC 309, cited

Hartnett v Hynes [2009] QSC 225, cited

HSBC Bank Australia Ltd v Wang [2021] QSC 58, cited

Re Incentive Programmes Pty Ltd [1984] QSCFC 128, considered

Re Jorss’ Caveat [1982] Qd R 458, cited

COUNSEL:

N H Ferrett for the plaintiffs

D A Skennar QC for the defendant

SOLICITORS:

Affinity Lawyers for the plaintiffs

Morgan Conley Solicitors for the defendant

  1. [1]
    There are currently two applications before the Court:
  1. An application by the defendant pursuant to s 127 of the Land Title Act 1994 (Qld) (Land Title Act) to remove two caveats lodged by the second plaintiff.
  2. An application by the plaintiffs pursuant to r 375 and/or r 377(1)(c) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) for leave to amend the Claim and Statement of Claim.
  1. [2]
    The two applications were dealt with together in submissions as it was accepted that the two applications were interconnected.

Procedural background

  1. [3]
    Supreme Court proceedings were commenced on behalf of the first and second plaintiffs originally by way of an Originating Application where they were named as the first and second applicants. 
  2. [4]
    On 19 January 2021 it was ordered that the proceedings continue as if started by claim.  On 16 February 2021 an Amended Claim and Statement of Claim were filed.  On 19 March 2021 the defendant filed a Notice of Intention to Defend and Defence.
  3. [5]
    The material read in respect of the two applications includes the pleadings and the following documents on the Court file:
    1. (a)
      affidavits filed in relation to the Originating Application;
    2. (b)
      affidavits filed in relation to an application dated 7 April 2021 by the defendant to remove two caveats lodged by the first plaintiff;
    3. (c)
      affidavits filed in support of the current application by the defendant to remove the two caveats lodged by the second plaintiff; and
    4. (d)
      affidavits filed in support of the current application to amend the Amended Claim and Statement of Claim.

Application to remove caveats

  1. [6]
    Section 122(1)(a) of the Land Title Act provides that a caveat may be lodged by a person claiming an interest in a lot.
  2. [7]
    “Interest” is defined in Schedule 1 to the Acts Interpretation Act 1954 (Qld) to mean:
  1. “(a)
    a legal or equitable estate in the land or other property; or
  1. (b)
    a right, power or privilege over, or in relation to, the land or other property”. 
  1. [8]
    Section 127 of the Land Title Act deals with the removal of caveats and states as follows:
  1. “(1)
    A caveatee may at any time apply to the Supreme Court for an order that a caveat be removed.
  1. (2)
    The Supreme Court may make the order whether or not the caveator has been served with the application, and may make the order on the terms it considers appropriate.”
  1. [9]
    The applicable principles on an application to remove a caveat are not controversial.  An application to remove a caveat requires:
    1. (a)
      The caveator to show a serious question to be tried as to whether its claimed interests exist; and
    2. (b)
      The balance of convenience favours maintenance of the caveat.[1]
  2. [10]
    The application is heard summarily[2] and the burden of proof is:
    1. (a)
      upon the caveatee to show that the facts upon which the caveat is said to rest do not support a claim to an estate or interest in land; and
    2. (b)
      then, upon the caveator to show that issues exist which so tend to support a fairly arguable title to justify the prevention of dealings with the land until they have been decided in appropriate proceedings.[3]
  3. [11]
    A key consideration is what constitutes a caveatable interest.  The defendant relies on the following statement of principle:

“[w]hat is necessary is that there be an interest in respect of which equity will give specific relief against the land itself …”.[4]

  1. [12]
    The defendant also points to a number of authorities in respect of conduct by a purchaser which evidences an intention to no longer be bound by the contract.
  2. [13]
    In Re Incentive Programmes Pty Ltd,[5] the application concerned a purchaser who had entered into a contract to buy land and the purchase price was paid in full, but the land was not conveyed.  While an action for specific performance had been commenced it had not been pursued.  Further, the purchaser provided a notice under s 364 of the Companies (Queensland) Code claiming the amount paid and interest as a creditor.  It was argued that providing the notice demonstrated an election that the purchaser no longer considered himself bound by the contract.  In this regard, Andrews SPJ stated:

“… it is not the proper approach to treat an application of this kind as the trial of an action to establish a caveatable interest.  However for the purposes of such an application the facts presented may be subjected to critical examination in order to determine whether they may support the caveator’s claim, without there being any decision upon issues raised which would finally dispose of the claim.  As to the prospects of success of the caveator the material demonstrates that upon and since the furnishing of the s. 364 notice he has ceased to regard himself as bound by the contract.”[6]

  1. [14]
    Further, Andrews SPJ held:

“In some cases knowledge of a right of election as between two available inconsistent legal rights may be necessary.  In other cases such as this one it is not.  Here the caveator entered into the contract and was a party to it and is bound by its terms as to his legal rights.  That is all the knowledge which is needed.  His knowledge of the facts cannot be questioned and he has taken steps which, according to my view of the correct interpretation to put upon them, demonstrate that he no longer regarded himself as bound by it.  That in my view is sufficient to demonstrate that his prospects of obtaining specific performance of the agreement in the action instituted by him in December 1983 are slight.  If there were nothing else in my view that would be sufficient to order the removal of the caveat.”[7]

  1. [15]
    The defendant refers to and relies on the comments by Shepherdson J as follows:

“Fortunately, the issue before the learned Chamber Judge can be resolved without recourse to the balance of convenience test because in my view, on the evidence before him the learned Chamber Judge was entitled to order removal of the caveat.  I say this because that evidence clearly showed that the appellant elected to forego his right to specific performance and also by claiming the moneys under the s. 364 notice.  Prior to the giving of that notice the appellant had an equitable estate or interest in the land, he having paid all the purchase money.  He was entitled to call for a transfer of the fee simple in the undivided half share he had purchased.  That was his right. However, he chose instead to demand the return of the moneys paid under the contract and thereby evinced the exercise of another right – the right to bring the contract to an end … In my view the evidence before the learned Chamber Judge showed a clear case of an election and such a clear case that the order for the removal of the caveat was justified.”[8]

  1. [16]
    Similarly, the defendant refers to the decision in Location Properties Ltd v G H Lincoln Properties Ltd as authority for the proposition that after a contract is terminated by the vendor as a result of the purchaser’s failure to settle, the purchaser did not have a caveatable interest.[9]

Factual background

  1. [17]
    On 18 August 2020 the second plaintiff and the defendant entered into an unconditional contract for the sale of residential land at 30 Brittanic Crescent, Paradise Point (the Property) being Lot 63 on RP222331 having title reference 56647242 and Lot 66 on RP883692 having title reference 17320104 for the sum of $4,950,000.00 (Original Contract).
  2. [18]
    Under the Original Contract, settlement was to be on 28 February 2021 and the deposit was to be paid by instalments including payments on 31 October 2020 and 14 November 2020.
  3. [19]
    On 18 September 2020, an email was sent from Affinity Lawyers for the plaintiffs to Morgan Conley Solicitors for the defendant:
    1. (a)
      requesting a change to the buying entity under the Original Contract; and
    2. (b)
      asking if the defendant would agree to enter into a deed of rescission and a new contract of sale to effect the name change.
  4. [20]
    On 19 October 2020, Morgan Conley Solicitors sent a letter to Affinity Lawyers advising that “our respective clients have spoken and have verbally agreed to rescind the current contract and enter into a new contract on the following terms”.  The letter then set out terms including:
    1. (a)
      the first plaintiff as the new buying entity;
    2. (b)
      revised dates for the payment of the deposit by instalments, including payments on 25 October 2020 and 16 November 2020;
    3. (c)
      Settlement Date is “[o]n or before Friday, 29 January 2020” [sic];
    4. (d)
      all other terms of the contract remain unchanged; and
    5. (e)
      the Buyer agrees to pay a fixed amount for all costs of and incidental to reviewing and executing the deed of rescission and new contract.
  5. [21]
    On 23 October 2020, Affinity Lawyers sent an email to Morgan Conley Solicitors advising that the terms were acceptable and confirming the first payment of the deposit instalment was due by 25 October 2020.    (This is referred to as the New Agreement by the plaintiffs.  To avoid any potential confusion which may arise by the way this is referred to in subsequent correspondence and submissions, I will refer to this purported agreement as the October Agreement).
  6. [22]
    On 23 October 2020, the sum of $247,500.00 was paid to the deposit holder under the Original Contract.
  7. [23]
    On 26 October 2020, Morgan Conley Solicitors wrote to Affinity Lawyers requesting a draft deed of rescission and new contract for review as the amount fixed for costs was on that basis.
  8. [24]
    Later, on 26 October 2020, Affinity Lawyers emailed Morgan Conley Solicitors advising that they would send through the documents shortly.
  9. [25]
    On 12 November 2020, Affinity Lawyers emailed Morgan Conley Solicitors attaching a draft new contract of sale and deed of novation and guarantee.
  10. [26]
    The draft new contract of sale includes the following:
    1. (a)
      the first plaintiff as the buyer.
    2. (b)
      the date for settlement as “[o]n or before Friday 29 January 2020” [sic].
    3. (c)
      revised dates for the last three deposit instalments being payable on 15 October 2020, 25 October 2020 and 16 November 2020.
  11. [27]
    The draft deed of novation and guarantee includes the following:
    1. (a)
      The second plaintiff as “original buyer” and the first plaintiff as “new buyer”. 
    2. (b)
      Recital B states as follows:

“THE Original Buyers desire to be released and discharged from the Original Contract and the Seller has agreed, subject to this Deed, at the request of the Guarantor to release and discharge the Original Buyers therein from upon the terms that the New Buyer shall enter forthwith into an agreement (hereinafter called ‘the New Contract’) with the Seller to purchase the Property on the same terms and conditions as were contained in the Original Contract and that the Guarantor shall guarantee the due performance by the New Buyer of the New Contract and any amounts payable or due on the Old Contract including Stamp Duty.”

  1. (c)
    Clause 3 states as follows:

“THE Seller and the New Buyer shall enter into the New Contract forthwith upon the execution of this instrument and the New Contract (inculcated with a waiver of the Cooling off period), and the New Contract shall be construed as if it had been entered into on the same day as the date of the Original Contract, save as to regards to the parties.”

  1. [28]
    On 16 November, the sum of $247,500.00 was paid to the deposit holder.
  2. [29]
    By letter dated 27 November 2020, Morgan Conley Solicitors wrote to Affinity Lawyers advising that the second defendant had defaulted in the payment of the deposit terms, (being an essential term), and had breached Special Condition 7 of the contract as the instalment had not been receipted until 17 November 2020.
  3. [30]
    Further, on 21 December 2020 Morgan Conley Solicitors wrote to Affinity Lawyers purporting to terminate the Original Contract. 
  4. [31]
    The letter also includes a further offer as follows:

“Your client has previously approached our client with a view to changing the buying entity for the sale of the above property.  We are further instructed that our client is prepared to enter into a new unconditional Contract of Sale on the following terms:

  1. (a)
    The Purchase Price will be $5,250,000.00;
  1. (b)
    A credit of $990,000.00 will be acknowledged as having been paid; and
  1. (c)
    The Settlement Date will be 29 January 2021.

If this is agreeable, we will send you the Contract of Sale on your confirming the identity of the buying entity.

Please obtain your client’s instructions and revert back to us as a matter of priority.”

  1. [32]
    By letter dated 23 December 2020, Affinity Lawyers wrote to Morgan Conley Solicitors requesting that the defendant “retract the purported termination” and also giving the defendant until 4.00pm on 23 December 2020 to review, and if satisfied, execute and return the deed of rescission and new contract.
  2. [33]
    On 23 December 2020, the first plaintiff lodged caveats over the Property.
  3. [34]
    On 13 January 2021, Affinity Lawyers sent to Morgan Conley Solicitors an email headed “Without Prejudice Save as to Costs”.  This attached a draft Originating Application.  In a later email on 15 January 2021 Affinity Lawyers advised that the email should have been headed “Without Prejudice” not “Without Prejudice Save as to Costs” as it referenced without prejudice conversations.
  4. [35]
    I make some additional comments about this document at this stage:
    1. (a)
      An affidavit which was filed by leave on 19 January 2021 before Justice Wilson exhibited a copy of a redacted version of the email and the Originating Application.  The documents may have been put before the Court in relation to a cost argument arising out of the Originating Application that was eventually filed with the Court and a first return date. 
    2. (b)
      The defendant now seeks to rely on the terms of the draft Originating Application as evidence of a change in position by the first and second plaintiffs.  No objection appears to be taken to paragraphs 19 and 20 of the defendant’s submissions in relation to the current application. 
    3. (c)
      Further submissions may need to be made as to whether this document is admissible if the matter proceeds to trial.  On the basis no objection has been taken in respect of this application I have referred to the document.
  5. [36]
    The draft Originating Application sought relief in respect of both the October Agreement (with the first plaintiff) and alternatively the Original Contract (with the second plaintiff).
  6. [37]
    On 14 January 2021, Morgan Conley Solicitors wrote to Affinity Lawyers “withdrawing” the purported termination of the Original Contract.  The letter also identified that the relief sought in the draft Originating Application no longer “needs to be agitated”.
  7. [38]
    On 15 January 2021, Affinity Lawyers emailed Morgan Conley Solicitors indicating that the plaintiffs were pressing ahead with the Originating Application as the parties had reached agreement to “novate the contract” but the deed and new contract of sale had not been executed.
  8. [39]
    On 15 January 2021, Affinity Lawyers corresponded with the Applications List Manager in respect of listing the proceeding and included a brief description of the relief sought. 
  9. [40]
    On 18 January 2021, Affinity Lawyers emailed an unfiled copy of the Originating Application and affidavit of Joanne Malec (unsworn) to the Applications List Manager.  The Originating Application was listed before Justice Wilson on 19 January 2021. 
  10. [41]
    At 9.26 am on Monday 18 January 2021, Morgan Conley Solicitors wrote to Affinity Lawyers including as follows:
    1. (a)
      The defendant had not signed the deed of novation or the new contract and did not propose to do so.
    2. (b)
      This had been made clear by the further offer set out in the letter dated 21 December 2020. 
    3. (c)
      There was no concluded agreement between the defendant and the first plaintiff.
  11. [42]
    In the afternoon of 18 January 2021, Affinity Lawyers emailed Morgan Conley Solicitors attaching a signed copy of the affidavit of Ms Malec and advising as follows:

“We note that it is only today that your client has confirmed, unequivocally, that it will not be abiding by the terms of the ‘New Agreement’, having previously merely withdrawn its termination of the ‘Original Contract’.

In the circumstances, we are instructed to hereby accept your client’s repudiation of the New Agreement, and seek damages and costs against your client – and our clients reserve all of their rights in this respect.

Accordingly, we are instructed to seek directions at tomorrow’s hearing for the future conduct of the matter, which is no longer required to be heard on an priority basis [sic].

It is disappointing that there was a complete failure by your client to present its position prior to today’s date, despite invitation, which has put our clients to unnecessary costs and wasted the Court’s time.”

  1. [43]
    The Originating Application filed on 19 January 2021 seeks relief in respect of the October Agreement.
  2. [44]
    On 19 January 2021, Wilson J ordered that the matter proceed as if started by Claim and directions were made for the filing of an Amended Claim and Statement of Claim and Notice of Intention to Defend and Defence.
  3. [45]
    On 19 January 2021, Morgan Conley Solicitors wrote a further letter to Affinity Lawyers which included an express statement that the defendant did not intend to sign the draft documents emailed on 12 November 2020 and did not consider herself bound by the draft documents.
  4. [46]
    In accordance with the orders of the Court, an Amended Claim and Statement of Claim were filed on 16 February 2021 and Notice of Intention to Defend and Defence were filed on 19 March 2021.
  5. [47]
    By way of the Amended Claim, the first plaintiff and the second plaintiff claim the following relief:

“1.  A declaration that the Plaintiffs and the Defendant entered into, and were bound by, the New Agreement.

  1. A declaration that the Defendant repudiated the New Agreement.
  1. A declaration that the Plaintiffs validly accepted the Defendant’s repudiation of the New Agreement.
  1. An order that the Defendant pay to the Plaintiffs or each of them damages (including in equity) for breach of the New Agreement to be assessed.
  1. Further or alternatively, a declaration that the Defendant holds the Land on trust for the benefit of the First Plaintiff or, alternatively, the Plaintiffs …”
  1. [48]
    The Statement of Claim pleads at paragraph four that the Original Contract was entered into on or about 18 August 2020.  Further, the October Agreement (referred to as the New Agreement) is pleaded in paragraph five in accordance with the terms of the letter dated 19 October 2020.
  2. [49]
    In respect of the October Agreement, the Statement of Claim pleads as follows:
    1. (a)
      Paragraph five sets out the terms of the letter dated 19 October 2020 as being “the Offer”.
    2. (b)
      By email dated 23 October 2020 the plaintiffs accepted the Offer in accordance with the terms of the email dated 23 October 2020.
    3. (c)
      On or about 23 October 2020 the parties entered into the “New Agreement” and became bound by its terms.
    4. (d)
      On or about 23 October 2020 the plaintiffs paid the sum of $247,500.00 to the defendant via the deposit holder.
    5. (e)
      That payment constituted performance of the “New Agreement”.
    6. (f)
      On or about 12 November 2020, the plaintiffs, via their solicitor, sent an email to the defendant via her solicitors attaching “to the effect, a draft Deed of Rescission and new contract”.
    7. (g)
      On or about 16 November 2020, the plaintiffs paid the sum of $247,500.00 to the defendant via the deposit holder.
    8. (h)
      The payment constituted performance of the “New Agreement’.
  3. [50]
    The Statement of Claim then goes on to deal with the defendant’s repudiation of the October Agreement and states as follows:

“13.  On or about 18 January 2021, the Defendant, via her solicitors, sent a letter by email to the Plaintiffs, via their solicitors, evincing an intention not to be bound by the terms of the New Agreement.

  1. The effect of the content of the letter referred to in paragraph 13, above, constituted repudiation of the New Agreement.
  1. On or about 18 January 2021, the Plaintiffs, via their solicitors, sent an email to the Defendant, via her solicitors, stating words, to the effect of, accepting the Defendant’s repudiation of the New Agreement, confirming that damages would be sought and reserving all rights at law.”
  1. [51]
    In respect of the letter dated 18 January 2021, paragraph 13 of the Defence denies that the letter evinced an intention not to be bound by the terms of the October Agreement and believes it untrue because there was no October Agreement.  Further, in paragraph 14 of the Defence, the defendant denies that the letter constituted a repudiation of the October Agreement and believes it to be untrue because there was no October Agreement capable of being repudiated. 
  2. [52]
    Importantly, the Statement of Claim then pleads the claimed loss and damage as follows:

“16. In the premises, the Plaintiffs and/or each of them have and will suffer loss and damage.

Particulars

Subject to completion of disclosure and other interlocutory steps, the Plaintiffs say that they will suffer loss and damage in the sum of $265,150.00, being the estimated duty payable the Office of State Revenue to transfer the Land from the Second Plaintiff to the First Plaintiff to give effect to the terms of the New Agreement.

Subject to completion of disclosure and other interlocutory steps, the First Plaintiff will likely also have suffered loss and damage being the lost opportunity to purchase at the price bargained and/or gain the increase in market value and/or to develop and sell the Land, including lost profit.

  1. Further or alternatively, in the premises of paragraphs 1 to 16, above, the Defendant holds the Land on trust for the benefit of the First Plaintiff, or alternatively, the Plaintiffs.”
  1. [53]
    On 23 February 2020, Morgan Conley Solicitors wrote to Affinity Lawyers and advised a number of matters including:

“It is clear from your client’s correspondence of 5.38pm on 18 January 2021 and subsequent Amended Claim and Statement of Claim that:

  • Both The Development Collection Pty Ltd and La Costa D Oro Pty Ltd considered the contract between The Development Collection Pty Ltd and our client at an end as at on or about 23 October 2020, being the date your client, La Costa D Oro Pty Ltd, pleads that the ‘New Agreement’ came into effect.  You will appreciate that to allege the New Agreement was on foot, the Original Contract can not have been on foot;
  • La Costa D Oro Pty Ltd has abandoned its previous relief sought, being an order that our client specifically perform the New Agreement and the New Contract;
  • La Costa D Oro Pty Ltd alleges that our client has repudiated the New Agreement (which is denied as our client does not accept such was ever on foot);
  • La Costa D Oro Pty Ltd accepts our client’s repudiation and terminates the New Agreement;
  • Accordingly, both of your client’s [sic] do not currently consider themselves bound by a Contract of Sale to purchase the property situated at 30-32 Brittanic Crescent, Paradise Point.

Our client made clear after withdrawing its purported termination of the Original Contract between Jenny Karananos and The Development Collection Pty Ltd that it considered that the Original Contract remained on foot.

Your client has made clear, through its correspondence of 23 October 2020 and its Amended Claim and Statement of Claim, that it does not consider the Original Contract to be on foot.  This is the only available conclusion based on the contents of those documents.

It is apparent that The Development Collection Pty Ltd is neither ready nor willing to perform their contractual obligations to our client under the Original Contract and has, by its conduct, evinced an intention not to be bound by that contract.  Consequently no notice under the Property Law Act is required to accept the repudiation.

Accordingly, our client hereby accepts your client’s repudiation of the Original Contract and confirms that such is terminated.

You will appreciate the parties to the Original Contract agreed that the amount of $985,000 was to be released early to the Seller and that such is non-refundable in circumstances where the Contract is terminated as a result of the Buyer’s conduct.

Our client will now proceed to remarket the property and re-sell the property.  We put your client on notice that our client will seek any loss and damage from The Development Collection Pty Ltd should she receive a price less than that which was the purchase price under the Original Contract.

Further, La Costa D Oro Pty Ltd is required to forthwith withdraw its caveats from each of the Lots that comprise the property the subject of the Contract of Sale.  The interest claimed by your client is ‘an estate in fee simple as purchaser’ and the grounds of claim are ‘pursuant to an agreement dated on or about 23 October 2020 between the registered owner as vendor and the caveator as purchaser’.  Your clients’ case is that the New Agreement (which our client does not admit ever came into existence) is terminated.”

  1. [54]
    By email dated 24 February 2021, Affinity Lawyers responded to the letter dated 23 February 2021 as follows:

“The premise of this assertion is predicated primarily on your client’s assertion ‘for the New Contract to be on foot the Original Contract could not have been on foot’.  That is incorrect both in law and fact, by your own admission the Original Contract was not rescinded.

Ergo, please return the transfer documents and we confirm that our client is ready willing and able to settle.”

  1. [55]
    On 24 February 2021, Morgan Conley Solicitors responded as follows:

“Our client’s position is not convoluted, it is quite clear.  The Original Contract is terminated having been repudiated based on your communications with us and the pleadings of your clients.

 Your clients, having commenced a proceeding in the Supreme Court of Queensland, allege on behalf of La Costa D Oro Pty Ltd (‘LCDO’) and The Development Collection Pty Ltd that some agreement, which your clients refer to as the New Agreement in their pleading (as prepared by your Firm) came into existence on or about 23 October 2020.

The New Agreement is, allegedly, that our client would enter into a New Contract with LCDO as purchaser.

Your clients’ pleadings expressly allege the New Agreement came into existence and was on foot, such that they subsequently allege in your correspondence of 18 January 2021 (and paragraph 15 of the Statement of Claim) that our client repudiated the New Agreement by failing to sign the New Contract, and LCDO accepted the purported termination such that the New Agreement (the existence of which is denied by our client) is at an end.

Your clients cannot, as a matter of fact and law, allege that as at 23 October 2020, or any other subsequent time after they allege the New Agreement came into effect, the Original Contract remained on foot.  It simply cannot be the case that there were two binding contracts of sale for the one property on foot at the same time.

Your clients, by their communications and pleadings, conflate their rights and obligations.  The Amended Claim and Statement of Claim verifies the election of your clients on both contracts, namely the Original Contract cannot proceed through the election of your clients to allege the New Agreement was terminated by acceptance of our client’s purported repudiation.

Simply put, the New Contract cannot be terminated by your client unless it accepts the Original Contract had ceased.  Both your clients make this assertion as plaintiffs to the proceedings.  This concession gives rise to the right of repudiation of the Original Contract, that repudiation having been accepted by our client.  Thereby the Original Contract is terminated and your clients are left with the rights they pursue in the proceedings.”

  1. [56]
    The defendant then sought confirmation that the caveats lodged by the first plaintiff would be removed. 
  2. [57]
    A further email was sent by Affinity Lawyers on 25 February 2021 repeating that:

“[w]e do not accept your clients [sic] purported termination of the Contract with the Development Collection, and our client stands ready willing and able to settle.”

  1. [58]
    A further response was sent by Morgan Conley Solicitors on 25 February 2021 restating its position as previously articulated.  Further, on 25 February 2021 Affinity Lawyers also sent a further email which again stated “[w]e repeat our client will and is ready willing and able to settle tomorrow and Monday and note that you have been emailed the transfer documents”.
  2. [59]
    On 25 February 2021, Affinity Lawyers sent an email with a draft settlement statement and arranging for settlement to take place on 26 February 2021.  The email noted that “strictly speaking settlement is Monday the 1 March 2021.  Our client is ready willing and able to settle on either date”.
  3. [60]
    On 26 February 2021, Morgan Conley Solicitors wrote to Affinity Lawyers noting that settlement under the Original Contract would not be that day and further stated “[y]ou will appreciate our client’s position is that the Original Contract has been terminated”.
  4. [61]
    On 26 February 2021, Affinity Lawyers sent an email confirming that they attended the settlement venue at 2.00pm that day and further confirmed that “[o]ur client is ready willing and able to effect settlement and will do so again on Monday”.
  5. [62]
    On Monday 1 March 2021, Affinity Lawyers again wrote to Morgan Conley Solicitors with an amended settlement statement and confirming that their client was ready willing and able to effect settlement.
  6. [63]
    On 1 March 2021, Morgan Conley Solicitors wrote to Affinity Lawyers again confirming that the contract had been terminated.
  7. [64]
    Further, on 1 March 2021, Morgan Conley Solicitors wrote a letter to Affinity Lawyers advising that the settlement venue was not the prescribed settlement venue under the Original Contract and that any “purported settlement was required to take place at 1/14 Edgewater Court, Robina”.  A representative of the defendant was present at that address between 3.45 pm and 4.00 pm on that day.  There was no attendance by the plaintiff’s lawyers.  The letter goes on to state:

“It is clear your client was not ready willing and able to settle and accepts the effect of the termination of the Contract by our client.  It did not attend the required location for settlement and it caused its related party, La Costa D Oro Pty Ltd to not provide our client with withdrawals of its caveats, despite request, causing our client to be unable to provide clear title.

 Whilst it remains the case that our client contends the Contract has been terminated, we do not see how your client can continue to assert it was ready willing and able to effect settlement.”

  1. [65]
    Further letters were exchanged on 1 March 2021 and 2 March 2021 in relation to arrangements for settlement.  The defendant’s lawyers again stated their position that the Original Sale Contract had been terminated.  They requested further information in relation to the attendance at settlement.
  2. [66]
    On 19 March 2021, the defendant filed a Notice of Intention to Defend and Defence.  The Defence relevantly provides as follows:
    1. (a)
      The defendant admits paragraph four in the Statement of Claim, that is the Original Contract was entered into on or about 18 August 2020.
    2. (b)
      Sets out the relevant correspondence between the parties in relation to the October Agreement dated 23 October 2020, 26 October 2020 and 12 November 2020.
    3. (c)
      States that the letter of 19 October 2020 did not constitute an offer capable of acceptance.
  3. [67]
    On 25 March 2021, Morgan Conley Solicitors wrote to Affinity Lawyers advising that the caveats lodged by the first plaintiff were not supported by any relief claimed in the Amended Claim and Statement of Claim.  In these circumstances, the removal of the caveats from the title of the properties was again called for.
  4. [68]
    On 7 April 2021, the defendant filed an application to have the caveats lodged by the first plaintiff removed.  On 13 April 2021, Affinity Lawyers on behalf of the plaintiffs wrote to the defendant in respect of its application to have the first plaintiff’s caveats removed.  The letter stated as follows:

“… we advise that the Development Collection Pty Ltd has lodged an instalment contract caveat on the title of the Property and advise that our clients intend to amend their pleadings shortly.

…

In the premises, we are instructed to withdraw the Caveats the subject of your client’s application today, meaning that there is no basis for your client to proceed with the application.”

  1. [69]
    On this basis, consent orders were made dismissing the application in respect of the caveats lodged by the first plaintiff.  It was agreed that the first plaintiff pay the defendant’s costs of and incidental to the application to be agreed or assessed on the standard basis.
  2. [70]
    On 13 April 2021, the second plaintiff lodged two caveats on the Property stating:

“The interest of a purchaser under an instalment contract as defined by section 71 of the Property Law Act 1974 (Qld).”

  1. [71]
    Further, in respect of the grounds of claim, the caveats state:

“Pursuant to section 74 of the Property Law Act 1974 (Qld) and the instalment contract dated on or about 18 August 2020 deposited herewith between the registered owner as vendor and the caveator as purchaser.”

  1. [72]
    On 20 April 2021, Affinity Lawyers on behalf of the plaintiffs wrote to the Resolution Registrar advising that the plaintiffs “propose to amend their pleadings shortly”.  Further, on 22 April 2021, Affinity Lawyers emailed Morgan Conley Solicitors advising that their amended pleadings were being prepared and would be provided.
  2. [73]
    On 7 May 2021, Morgan Conley Solicitors wrote a further letter to Affinity Lawyers in respect of the removal of the caveats lodged by the second plaintiff.  The letter restates many of the previous articulated positions but relevantly states:

“We note that your client The Development Collection Pty Ltd [‘TDC’] lodged caveats on our client’s properties on 13 April 2021.

 …

 TDC well knows there is no instalment contract on foot.  Our client considers the lodgement of the caveats by your client to be an abuse of process …”.

  1. [74]
    On 7 May 2021, Affinity Lawyers responded to Morgan Conley Solicitors advising that the caveats would not be withdrawn.
  2. [75]
    Further correspondence was exchanged on 10, 11 and 12 May 2021, most of which reagitates issues that have previously been dealt with in correspondence.

Defendant’s (applicant’s) position

  1. [76]
    The defendant contends that there is no serious question to be tried as to whether the second plaintiff has an interest in the land arising from the Original Contract.  Consequently, the balance of convenience does not need to be considered.
  2. [77]
    The defendant relies on conduct of both the first and second plaintiffs in relation to the Original Contract and the “New Contract”[10] and ultimately submits that on the plaintiffs’ own case there can be no caveatable interest.
  3. [78]
    Specifically, the defendant relies on the following conduct:
    1. (a)
      The first plaintiff lodged caveats in December 2020 claiming an estate in fee simple as purchaser relying on the ground: “Pursuant to an agreement dated on or about 23 October 2020 between the registered owner as vendor and the caveator as purchaser.”[11] 
    2. (b)
      A draft Originating Application provided on 13 January 2021 sought enforcement of the October Agreement, or alternatively the Original Contract.
    3. (c)
      The Originating Application filed on 19 January 2021 sought specific performance of the October Agreement[12] (but not the Original Contract) as well as:

“Determination of the question whether, in the events that have happened, the Respondent is bound to specifically perform and carry into effect an agreement made between the Applicants and the Respondent on 23 October 2020 (‘the New Agreement’)”.

  1. (d)
    The Amended Claim and Statement of Claim filed on 16 February 2021 sought damages for breach of the October Agreement (not specific performance) and no relief in relation to the Original Contract.
  2. (e)
    The second plaintiff lodged caveats in April 2021:
    1. Claiming an interest in the land as “[t]he interest of a purchaser under an instalment contract as defined by section 71 of the Property Law Act 1974”. 
    2. On the ground of “[p]ursuant to section 74 of the Property Law Act (Qld) and the instalment contract dated on or about 18 August 2020 deposited herewith between the registered owner as vendor and the caveator as purchaser”.
  3. (f)
    The proposed Substituted Statement of Claim claims relief under both the Original Contract and the subsequent Agreement.[13]
  1. [79]
    The defendant’s analysis of the above conduct is that:
    1. (a)
      In order to rely on the Original Contract, the plaintiffs would have to allege that the October Agreement was of no effect.  They in fact do the opposite – the plaintiffs plead the October Agreement was effective and was repudiated by the defendant.
    2. (b)
      If that is correct, then the Original Contract was rescinded by the October Agreement and the October Agreement is no longer on foot as the plaintiff has accepted and pleaded the defendant’s alleged repudiation of that contract.
  2. [80]
    The defendant’s position is that the October Agreement was not entered into.[14]
  3. [81]
    As a result of the above conduct, the defendant contends there is no contract on foot, despite the plaintiffs’ attempting to rely on both contracts.  The only right that may exist is the right for damages for breach of the October Agreement[15] and for recovery of the deposit (which the defendant denies).

Plaintiffs’ position

  1. [82]
    The submissions on behalf of the plaintiffs identify the following points in response to the defendant’s contentions:
    1. (a)
      The second plaintiff as caveator asserts an interest in performance of a contract of sale between the second plaintiff and the defendant.  This is the Original Contract.
    2. (b)
      The defendant contends that the Original Contract has been abandoned as a result of the plaintiffs asserting that the defendant is obliged to “carry into effect an agreement to novate the Sale Contract in favour of the first plaintiff”.  The defendant defines this as the “Novation Agreement” in its written submissions.  This is what I have referred to as the October Agreement.
    3. (c)
      The plaintiffs’ contention in respect of the October Agreement has been that the defendant is bound to sign documents which will give effect to the October Agreement.
    4. (d)
      The defendant argues that this is inconsistent with the Original Contract remaining on foot.
    5. (e)
      The plaintiffs however disagree and submit that the assertion that the defendant must do something to carry the October Agreement into effect necessarily implies that the Original Contract is on foot.  Putting it at its simplest:  the Original Contract remains on foot, otherwise there would be nothing to novate.
    6. (f)
      The plaintiffs also say this position is made out on the affidavit material filed on behalf of the defendant.  The affidavit of Ms Milligan filed 20 May 2021 in support of the application sets out the full relief sought in the Originating Application filed on 19 January 2021 at [12] and the relief sought in the Amended Claim at [18].
      1. The Originating Application sought orders that the October Agreement be carried into effect on the basis that would involve rescinding the Original Contract and entering into a new contract between the first plaintiff and the defendant.[16] 
      2. The Amended Claim sought relief including that the October Agreement was binding and that the defendant had repudiated the October Agreement.
      3. On 24 February 2021, the plaintiffs, by their solicitors rejected the proposition that the October Agreement was inconsistent with the Original Contract.[17]
  2. [83]
    At the hearing of the application, Senior Counsel for the plaintiffs recognised that if there were two contracts for the sale of land then the defendant’s contentions may be understandable.  However, it was submitted that it is essential to consider what the agreement was here.  The October Agreement is alleged to be an obligation on the defendant to execute documents to give effect to the agreement.  This is different from the October Agreement being a new sale contract itself. 
  3. [84]
    The plaintiffs’ position is that the rights are not inconsistent.  In these circumstances, there was no basis for the purported termination of the Original Contract on 23 February 2021 which relied on an alleged repudiation of the contract based on the October Agreement being inconsistent with the Original Contract.
  4. [85]
    In response to the application to remove the caveats, the plaintiffs maintain on the material before the Court that there is a triable issue and also the balance of convenience favours the maintenance of the caveat.
  5. [86]
    The plaintiffs submit there is no evidence that the defendant is suffering any particular inconvenience, and this is to be balanced with the second plaintiff being at risk of losing the benefit of the Original Contract.

Consideration

  1. [87]
    What is clear from a consideration of the evidence in this matter is that the issues in dispute between the parties have varied considerably over the period since the Original Contract was entered into on 18 August 2020.
  2. [88]
    It is also apparent from the correspondence in evidence that over time the position of the parties has changed, and it is not clear that full consideration has been given to the various legal issues that have arisen.
  3. [89]
    It appears that the following matters are relevant to the issues in dispute between the parties:
    1. (a)
      What is the status of the Original Contract?
      1. It was allegedly terminated on 21 December 2020 by the defendant but the termination was “withdrawn” on 14 January 2021.  Are there any legal implications arising from that?
      2. The defendant’s position after the withdrawal of the termination was that it remained on foot but terminated on 23 February 2021 on the basis that the second plaintiff had repudiated the Original Contract by its pleaded case in the Amended Claim and Statement of Claim.  Was the defendant entitled to terminate the Original Contract on that basis?
      3. The second plaintiff maintains that the Original Contract remains on foot, there was no repudiation justifying termination and consequently the second plaintiff affirmed the Original Contract on 24 February 2021.  Has the Original Contract been affirmed?
      4. The second plaintiff maintains it was “ready willing and able” to settle the Original Contract and alleges it took appropriate steps to settle the Original Contract.  Did the second plaintiff comply with its obligations to settle the Original Contract?
      5. Is the second plaintiff entitled to specific performance of the Original Contract?
    2. (b)
      In respect of the October Agreement:
      1. Was there a binding agreement as alleged by the plaintiffs?
      2. If so, what were its terms?
      3. Did the defendant repudiate the October Agreement by its correspondence of 18 January 2021?
      4. Was the first plaintiff justified in accepting the repudiation by the defendant and terminating the October Agreement on 18 January 2021?
      5. Is the first plaintiff entitled to the relief claimed in respect of the October Agreement?
  4. [90]
    The issues outlined above in respect of the October Agreement are currently dealt with in the Amended Claim and Statement of Claim.  However, the application to amend the pleadings seeks to amend what constitutes the “October Agreement” with the proposed pleading being that the agreement was reached on or about 12 November 2020 (that is, after the draft documents had been provided rather than before that time).
  5. [91]
    The issues in respect of the Original Contract are not dealt with in the Amended Claim and Statement of Claim and the application to amend the pleadings seeks to address this.  Currently, the Statement of Claim pleads that the Original Contract was entered into between the second plaintiff and the defendant.
  6. [92]
    The complexity and nature of the issues in dispute points towards these being matters that should be dealt with at trial and not in a summary way.  Further, apart from the positions stated in the correspondence between the lawyers there is a lack of evidence on some issues.
  7. [93]
    To succeed on the application the defendant needs to establish that there is a clear inconsistency between the Original Contract and the October Agreement such that they both cannot be maintained simultaneously.
  8. [94]
    There is a fundamental difficulty with that.  On the plaintiffs’ case the Original Contract logically had to remain on foot so that it could be novated to the new buyer, the first plaintiff.  That is consistent with what is pleaded as the October Agreement.
  9. [95]
    While it is correct that the second plaintiff did not seek relief in respect of the Original Contract in the filed Originating Application or the Amended Claim and Statement of Claim, the relief that was sought was not clearly inconsistent with the Original Contract remaining on foot.
  10. [96]
    In fact, both have aspects which tend to support the plaintiffs’ position, namely:
    1. (a)
      The filed Originating Application refers to the New Agreement as the agreement reached on 23 October 2020 to rescind the Original Contract and enter into a new contract.  This is consistent with the Original Contract continuing until the new arrangement is implemented.  The affidavit filed in support of the Originating Application includes the correspondence about the draft Deed of Novation and the draft new contract which contain terms consistent with this position.
    2. (b)
      The Amended Claim and Statement of Claim seeks relief in respect of the October Agreement being the agreement reached on 23 October 2020 to rescind the Original Contract and enter into a new contract.  This is clearly pleaded in the Statement of Claim.  Further by the loss and damage pleaded at [16] it clearly envisages that the Property would be transferred from the defendant to the second plaintiff pursuant to the Original Contract, in that:
      1. Part of the loss claimed is the additional stamp duty payable to effect the transfer of the Property from the second plaintiff to the first plaintiff. 
      2. Further, another part of the loss is described as “likely also have suffered” is “the lost opportunity to purchase at the price bargained and/or gain the increase in market value and/or to develop and sell the Land, including lost profit”, which cannot be said to be clearly entirely inconsistent with the Original Contract being on foot. 
  11. [97]
    In these circumstances, I am satisfied that there is a serious question to be tried as to whether the second plaintiff has an interest in the Property arising under the Original Contract.  The defendant has not shown that the facts upon which the caveat is said to be based clearly do not support a claim to an interest in land.  Further, the second plaintiff has established an arguable interest in the land.
  12. [98]
    In respect of the issue relevant to the balance of convenience, there is evidence that the defendant has listed the property for sale,[18] but there is no evidence that the defendant will suffer any particular inconvenience or prejudice if the caveats are not removed. 
  13. [99]
    Conversely, the second plaintiff may lose the benefit of the contract if the caveats are removed.
  14. [100]
    Given I am satisfied that there is a serious question to be tried and the balance of convenience tends towards maintaining the position until the issues can be determined at trial, the defendant’s application is refused.

Application to amend Claim and Statement of Claim

  1. [101]
    In respect of the first and second plaintiffs’ application to amend the Amended Claim and Statement of Claim, the affidavit of Nathan Kershler sworn 24 May 2021 is relied on in support of that application. 
  2. [102]
    The affidavit of Mr Kershler deposes to the agreed document plan contemplating amended pleadings prior to the completion of disclosure.  Further, Mr Kershler deposes to there being no prejudice given a short timeframe is unlikely to adversely affect the memory of any witnesses, which will be few as the dispute is largely in respect of documents in writing.
  3. [103]
    The proposed Further Amended Claim is exhibited to the first affidavit of Mr Kershler sworn 24 May 2021 and outlines the plaintiffs’ claim as follows:

“1.  An order that the defendant specifically perform and carry into effect the Sale Agreement.

  1. Damages pursuant to clause 9 of the Sale Agreement in an amount subsequently to be particularised.
  1. Damages for the first plaintiff for breach of the Novation Agreement in an amount subsequently to be particularised.
  1. Repayment of $990,000 as a debt due and owing, alternatively as money had and received to the second plaintiff’s use, alternatively as damages for breach of contract.
  1. A declaration that the second plaintiff has an equitable lien over the Land securing the amount of $990,000.”
  1. [104]
    The Amended Statement of Claim does not attempt to strikethrough and insert amendments to the original Statement of Claim.  Rather, it is headed “Substituted Statement of Claim” and states “[t]his pleading entirely replaces the original statement of claim”.
  2. [105]
    The Substituted Statement of Claim sets out a pleading in respect of the Sale Agreement being the contract entered into on or about 18 August 2020.  Further, it also sets out a pleading in relation to the “Novation Agreement”.  This was previously referred to as the “New Agreement”, however, as noted above, the basis of this agreement has changed to being concluded on or about 12 November 2020 and includes the provision of the draft documents.
  3. [106]
    Further, the pleading sets out the material facts in relation to the repudiation of the Novation Agreement and also the repudiation and affirmation of the Original Contract.  The second plaintiff maintains that it is ready willing and able to settle under the Original Contract.
  4. [107]
    The defendant’s written submission’s object to the proposed amendments on a number of bases, including:
    1. (a)
      It would be contrary to rule 5 of the UCPR in light of Applegarth J’s comments in Hartnett v Hynes.[19]  The overriding purpose of the rules is to facilitate the “just and expeditious resolution of the real issues in dispute at a minimum of expense”.   Permitting the amendments to allow for inconsistent claims would be inconsistent with the rules.
    2. (b)
      A party is prohibited from pleading inconsistent facts.[20]  Here the inconsistent position is that “[i]f the New Contract is on foot, the Original Contract cannot be on foot”.
    3. (c)
      Even if co-existence was possible that ceased when the Plaintiffs acted inconsistently with the Original Contract either as a result of renunciation, election, abandonment or estoppel.  The defendant specifically relies on:
      1. The affidavit of Joanna Malec filed 19 January 2021 in support of the Originating Application (sole director and secretary of the plaintiffs) at [40]–[45] that the then applicants were seeking specific performance of the October Agreement.
      2. By email on 18 January 2021 the plaintiffs accepted the defendant’s purported repudiation of the October Agreement and advised they would seek damages against the defendant.
      3. The plaintiffs amended the claim to seek damages against the defendant in reliance solely on the October Agreement.
    4. (d)
      The repudiation of the Original Contract amounts to renunciation.  That is an intention to no longer be bound by the contract.[21]  Here the second plaintiff demonstrated that it regarded itself as no longer bound by the Original Contract.  Upon the defendant’s acceptance of the renunciation (repudiation) of the second plaintiff, the Original Contract came to an end.
    5. (e)
      The plaintiffs made an election to pursue the October Agreement in the Amended Claim and by that the plaintiffs abandoned any rights they may have had under the Original Contract by acting inconsistently with it.[22]
    6. (f)
      A party to litigation will be held to a position previously taken where the relationship between the parties has changed.[23]  Here the plaintiffs took the position in the Amended Claim that only the October Agreement was on foot and as a result the defendant treated the Original Contract as repudiated and accepted that repudiation.  The plaintiffs cannot be permitted to effectively reinstate the Original Contract.
    7. (g)
      The plaintiff represented that the Original Contract was at an end and the defendant relied on that and accepted the repudiation and terminated the Original Contract.  The plaintiffs should be estopped from changing that position.
  5. [108]
    Given my observations in respect of the Original Contract and the October Agreement discussed above in relation to the application to remove the caveats, I am not satisfied that any of the above grounds are made out by the defendant. 
  6. [109]
    The positions taken in respect of the Original Contract and the October Agreement are not totally or clearly inconsistent such as to prevent the amendments being allowed.  The plaintiffs’ claim as currently articulated in the Amended Claim and Statement of Claim or as proposed in the Further Amended Claim and Substituted Statement of Claim are arguably open on the material currently before the Court.  They raise a serious question to be tried in respect of the Original Contract and the October Agreement (or the proposed re-defined Novation Agreement).
  7. [110]
    Further, the proposed Further Amended Claim and Substituted Statement of Claim is consistent with the obligations in rule 5 of the UCPR.  The proposed pleading seeks to identify the real issues in dispute between the parties so they can be efficiently and expeditiously dealt with, without the potential for multiple proceedings or on-going disputes between the parties. 
  8. [111]
    In the circumstances, I consider it is appropriate to grant leave to the plaintiffs to amend the Claim and Statement of Claim as set out in Exhibit “NJK1” to the Affidavit of Nathan Kershler sworn 24 May 2021.

Costs

  1. [112]
    The parties have not addressed costs in their submissions.  The parties should confer as to an appropriate costs order and provide a draft to my Associate.  If an order as to costs cannot be agreed, each party is to provide brief written submissions on costs within 7 days.

Orders and directions

  1. [113]
    Accordingly, the orders of the Court are that:
  1. The defendant’s application dated 20 May 2021 is dismissed.
  2. Pursuant to rules 375 and 377(1)(c) of the UCPR, the plaintiffs have leave to amend the Claim and Statement of Claim as set out in Exhibit “NJK1” to the Affidavit of Nathan James Kershler sworn 24 May 2021.
  1. [114]
    Further, the Court directs that:
  1. The parties are to confer on the appropriate costs order and, if agreed, a draft order is to be provided to my Associate.
  2. If the parties are unable to agree on the appropriate costs order, then each party is to provide brief written submissions on costs within 7 days.

Footnotes

[1]Re Jorss’ Caveat [1982] Qd R 458 cited with approval in HSBC Bank Australia Ltd v Wang [2021] QSC 58 at [4] per Holmes CJ; Burman v AGC (Advances) Ltd [1994] 1 Qd R 123 at 127-8.

[2]Goodwin v Gilbert [2000] QSC 309 at [15] citing Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58 at 68.

[3]Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58 at 69.

[4]Composite Buyers Ltd v Soong (1995) 38 NSWLR 286.

[5][1984] QSCFC 128.

[6][1984] QSCFC 128 at p 14.

[7]Ibid 16-7.

[8]Ibid 9-10.

[9][1988] 1 NZLR 307.

[10]In Section VI of the defendant’s written submissions reference is made to the New Contract (and also the New Agreement at one point). It appears from the defined term in [59] of the defendant’s written submissions that the defendant uses the term “New Contract” to refer to the same agreement that the plaintiffs describe as the “New Agreement”.  New Agreement is used in the Statement of Claim to refer to the agreement purportedly reached on 23 October 2020 to execute certain documents including the New Contract.  The draft New Contract was a new sale contract in the name of the first plaintiff as buyer which was emailed on 12 November 2020 together with a draft Deed of Novation. 

[11]I will use the term “October Agreement” to refer to the alleged agreement arising out of the correspondence on 23 October 2020 to avoid further confusion in terminology.

[12]I note that the 19 January 2021 Originating Application sought specific performance of both the “New Agreement” and the “New Contract” as well as determination of the question identified.

[13]I note that the proposed Substituted Statement of Claim pleads a different agreement to the October Agreement, as it incorporates the email providing the draft contract and deed of novation. This difference does not appear to be addressed in the submissions.

[14]The Defence at [6.2] denies that the letter of 23 October 2020 was an acceptance of an enforceable offer as the letter of 19 October 2020 did not constitute an offer capable of acceptance.  Further the Defence at [7] denies the “New Agreement” including that there was no concluded agreement between the parties and at [14] denies repudiation as there was no “New Agreement” capable of being repudiated.

[15]The defendant’s written submissions at [62] refers to the “New Agreement”.  Given the context it is assumed this is a reference to the October Agreement.

[16]The defendant refers to only part of paragraph 1 of the Originating Application.  After the initial paragraph it continues: “(a) Rescind a contract dated 18 August 2020 between the Second Applicant and the Respondent for the sale and purchase of certain real property (“the Original Contract”) and (b) Enter into a new contract between the First Applicant and the Respondent for the sale and purchase of the same property (“the New Contract”).”  The plaintiffs contend this is important as it is consistent with their position.

[17]See Affidavit of B Milligan sworn 20 May 2021 at [21]; Exhibit “BNM4” at p 6.

[18]See Affidavit of B Milligan sworn 20 May 2021 at [95].

[19][2009] QSC 225 at [27].

[20]King v Lynpete Australia Pty Ltd [2012] VSC 140.  See [25] and [27].

[21]Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 at [44].  Galafassi v Kelly (2014) 87 NSWLR 119 at [62].

[22]Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 at [56].

[23]Commonwealth v Verwayen (1990) 170 CLR 394 at 484-5.

Close

Editorial Notes

  • Published Case Name:

    La Costa D Oro Pty Ltd & Anor v Karananos

  • Shortened Case Name:

    La Costa D Oro Pty Ltd v Karananos

  • MNC:

    [2021] QSC 167

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    20 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
Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570
1 citation
Jump To
Cite 1 - (2008) 238 CLR 570
Commonwealth v Verwayen (1990) 170 CLR 394
1 citation
Jump To
Cite 1 - (1990) 170 CLR 394
Composite Buyers Ltd v Soong (1995) 38 NSWLR 286
1 citation
Jump To
Cite 1 - (1995) 38 NSWLR 286
Galafassi v Kelly (2014) 87 NSWLR 119
1 citation
Jump To
Cite 1 - (2014) 87 NSWLR 119
Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58
3 citations
Jump To
Cite 1 - [1982] Qd R 58
Cite 2 - [1982] Qd R 58
Cite 3 - [1982] Qd R 58
Goodwin v Gilbert [2000] QSC 309
2 citations
Jump To
Cite 1 - [2000] QSC 309
Cite 2 - [2000] QSC 309
Hartnett v Hynes [2009] QSC 225
2 citations
Jump To
Cite 1 - [2009] QSC 225
Cite 2 - [2009] QSC 225
HSBC Bank Australia Ltd v Wang [2021] QSC 58
2 citations
Jump To
Cite 1 - [2021] QSC 58
Cite 2 - [2021] QSC 58
In The Matter of an Application by Incentive Programmes Pty. Ltd. v Donald Mervyn Ridge as Trustee of the Ridge Family Trust [1984] QSCFC 128
5 citations
Jump To
Cite 1 - [1984] QSCFC 128
Cite 2 - [1984] QSCFC 128
Cite 3 - [1984] QSCFC 128
Cite 4 - [1984] QSCFC 128
Cite 5 - [1984] QSCFC 128
King v Lynpete Australia Pty Ltd [2012] VSC 140
1 citation
Jump To
Cite 1 - [2012] VSC 140
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
1 citation
Jump To
Cite 1 - (2007) 233 CLR 115
Location Properties Ltd v G H Lincoln Properties Ltd [1988] 1 NZLR 307
1 citation
Jump To
Cite 1 - [1988] 1 NZLR 307
Re Burman's Caveat [1994] 1 Qd R 123
2 citations
Jump To
Cite 1 - [1994] 1 Qd R 123
Cite 2 - [1994] 1 Qd R 123
Re Jorss' Caveat [1982] Qd R 458
2 citations
Jump To
Cite 1 - [1982] Qd R 458
Cite 2 - [1982] Qd R 458

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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