Quach v Daly[2024] QSC 115

SUPREME COURT OF QUEENSLAND

1. [1]
   This application concerns two documents which were signed on 25 July 2021. One is headed “Provisional Contract of Sale” and concerns a residential property at Mansfield (the “property contract”). The document refers to Mr Daly as the vendor of the Mansfield property and to Mr Quach as the buyer. The other is headed “Provisional Contract of Sale of the business” and concerns a business called Daly’s Native Plants (the “business contract”). It refers to Mr Daly and Mrs Daly as the sellers and Mr Quach as the buyer.
2. [2]
   Mr Quach has brought proceedings against the respondents in which he relies upon the “property contract” and the “business contract” and seeks the following orders:

   1. that Mr Daly sell the Mansfield property “at market value as at 30 July 2021 and adjusted … for exclusion of Crown land”;
   2. that Mr Daly and Mrs Daly sell the business; and
   3. that he receive compensatory damages for:
      1. the delay caused by the respondents for refusing to exclude Crown land from the valuation by Bristow and Associates;
      2. any capital gain in additional value of the Mansfield property and the business caused by the extensive delay “and as demanded by Robin Daly on 12 December 2022 to be $5 million, and/or subject to current valuation”; and
      3. the revenue from the business since 25 July 2021.
3. [3]
   This application is brought by the defendants. They seek a number of orders:

   1. that the latest version of the plaintiff’s Claim and Statement of Claim be set aside or struck out or dismissed; or
   2. that summary judgment be entered against the plaintiff; or
   3. that the defendants be given leave to apply for summary judgment before filing a Notice of Intention to Defend and Defence.

The history of these proceedings

4. [4]
   On an application to strike out a statement of claim it is often necessary to consider the history of the pleadings in order to understand the arguments of the parties. This is such a case. Extracted below is a chronology of relevant court events.

The form and nature of the plaintiff’s claim

5. [5]
   The claims by Mr Quach have changed over time but each claim is based, at least in part, on the property contract and the business contract. The allegations made by Mr Quach have changed over the course of the six versions of the Statement of Claim. In the following summary, the relevant variations are set out.
6. [6]
   In the SOC Mr Quach pleads (among other things) that:

   1. Mrs Daly told him that she would accept $3 million, less the “agent’s fee”, for both the property and the business;
   2. a “Provisional Contract of Sale” for each of the property and the business was signed on 25 July 2021;
   3. on 25 July 2021, Mr Daly “said that he would be seeing his solicitor the next day to draft further contracts of sale to the Plaintiff”;
   4. the defendants have refused to proceed with the sale of either the property or the business; and
   5. Mr Daly obtained a valuation of the property and the valuation contained errors.
7. [7]
   In the ASOC Mr Quach pleads (among other things) that:

   1. Mr Daly:
      1. is “bound by law not to include Crown land as part of the sale of [the Mansfield property]”;
      2. relies on a false and misleading valuation to inflate the value of the property; and
      3. is bound by the “Provisional Contract of Sale”; and
   2. Mr and Mrs Daly are bound by the “Provisional Contract of Sale” of the business.
8. [8]
   In the FASOC Mr Quach pleads (among other things) that:

   1. Mr Daly is bound by the “Provisional Contract of Sale” to complete the sale of the property with a valuation that “does not include an easement in favour of the vendor over Crown land”;
   2. Mr Daly relied on a false and misleading valuation that includes Crown land. “As a result of the valuation, the first respondent has inflated the price by $500,000 to $1,000,000”;
   3. Mr and Mrs Daly are bound by the “Provisional Contract of Sale” of the business;
   4. Mr Daly refuses to complete the Contract of Sale of the property;
   5. Mr and Mrs Daly refuse to complete the Contract of Sale of the business.
9. [9]
   In the 2FASOC Mr Quach pleads (among other things) that he:

   1. purchased the property “by written contract of sale … Appendix 1”;
   2. paid for the property and Mr Daly issued a receipt (Appendix 2);
   3. purchased the business by “written contract of sale … Appendix 5”; and
   4. paid for the business and the respondents accepted payment and issued a receipt (Appendix 6).
10. [10]
    In the 3FASOC Mr Quach pleads (among other things) that:

    1. on 24 July 2021Mrs Daly told him that the price for both the property and the business was $3,000,000;
    2. on 25 July 2021 Mr Daly and Mrs Daly agreed that they “would sign a contract with a deposit for both ‘the property,’ and ‘the business,’ and take it off the market”;
    3. a “binding Contract for sale” of the property (Appendix 1) exists between Mr Quach and Mr Daly “because he accepted payment”;
    4. a “binding Contract for sale for Kevin John Daly and Robin K Daly … exist [sic] between the Plaintiff and the first and second respondents … because they accepted payment for [the business]”;
    5. Mr Daly and his valuer “have a statutory obligation to value the property … at market value”; and
    6. Mr Daly “inflated the value of the property by $500,000 to $1,000,000 based on his valuation”.
11. [11]
    In the 4FASOC Mr Quach pleads (among other things) that:

    1. the “binding Contract for sale” of the property was “written”;
    2. the “binding Contract for sale” of the business was “written”;
    3. Mr Daly inflated the value of the property from $1,190,000 to $2,000,000;
    4. the refusal by Mr Daly to complete the contract for sale of the property has caused Mr Quach “significant loss and damage”;
    5. Mr Quach seeks specific performance of the contract of sale of the property “to be sold at market price as at 31 July 2021”;
    6. the refusal by Mr Daly and Mrs Daly to complete the contract for sale of the business has caused Mr Quach “significant loss and damage”; and
    7. Mr Quach seeks specific performance of the contract of sale for the business to be sold at $1 million.
12. [12]
    In the 2FASOC, 3FASOC and 4FASOC, Mr Quach appends a number of documents to each pleading. For both the property contract and the business contract a separate document is appended. Similarly, where he pleads that a receipt was given for the payments he made, each receipt is appended.
13. [13]
    Each of the contracts is handwritten and is brief – only one page in length. Rule 152 of the Uniform Civil Procedure Rules 1999 provides that unless precise words are material, a pleading may state the effect of spoken words or a document as briefly as possible without setting out all of the spoken words or document.
14. [14]
    In Carrick v Armstrong,^[1] the Full Court considered a statement of claim, the body of which set out the effect of the contract being sued on and stated that a copy of the contract was annexed, and annexed a copy. The defendant demurred to the statement of claim on the basis that the copy of the contract annexed did not have, and was incapable of having or bearing, the meaning or effect which was alleged in the body of the pleading. The demurrer was overruled. The reasons of Hart J, with whom Lucas and Douglas JJ agreed, provided that:

“Mr McPherson submitted, and I think rightly, that there are three ways of pleading the contents of a document:—

1.  The effect thereof may be stated as briefly as possible.

2.  In certain cases it may be necessary to state the precise words of the document.

3.  The pleader may incorporate the whole of the document by suitable words in his pleading.

He relied on the words of Singleton L.J. in Day v. William Hill (Park Lane) Ld. [1949] 1K.B.632, at p. 639:

“I am not sure that there was any necessity for the affidavit sworn by the defendant, which merely exhibited the documents referred to in the statement of claim, since if documents are referred to in a pleading they become part of the pleading and so it is open to the Court to read them.”

In my opinion Mr McPherson is right in his submission that the Agreement became part of the statement of claim.”^[2] (emphasis added)

15. [15]
    Carrick v Armstrong was considered in United Petroleum Pty Ltd v 7-Eleven Stores Pty Ltd^[3] where Fraser JA adopted – as applicable under the UCPR – this observation made by Hanger CJ in Bloeman v Atkinson^[4]:

“A plaintiff is not entitled to tell a defendant that his case is based on an identified document (which may contain five or fifty paragraphs—the number does not affect the principle) and leave the defendant to work out for himself what particular paragraph he thinks the plaintiff may be basing his case on. He is entitled to be told what the plaintiff says was the effect of the portion of the document which he relies on.”

16. [16]
    In this case, the plaintiff has, in different ways, pleaded the effect of what he says was the contract for the sale of the property and the contract for the sale of the business. He has also identified those written contracts by appending them to the pleading. The defendants did not argue that they were disadvantaged by pleading in that form. The parties proceeded on the basis that the appended contracts formed part of the pleading. So far as those contracts are concerned, I will treat them the same way. This approach has been taken in other cases.^[5]

What are the contracts relied upon by Mr Quach?

17. [17]
    The property contract is headed: “Provisional Contract of Sale”. It then has the description of the property, the vendor and the buyer and goes on to provide:

“This is a provisional contract of sale for the abovementioned property.

The vendor agrees to take the property off the market.

A deposit of $500 (cash), to be included in the final consideration, pending settlement and subject to finance.

Final consideration, terms and conditions of sale to be arranged.

Vendor consents to any change of name that appears on the final contract of sale and settlement.”

18. [18]
    After those provisions there appear the signatures of the vendor and buyer, the witnesses to those signatures, and the date – 25 July 2021.
19. [19]
    The business contract is in similar terms. It bears the heading “Provisional Contract of Sale of the business”. The parties’ names appear after that. The conditions are the same as those for the property contract save that the relevant condition of the business contract reads: “Final consideration, inclusions, terms and conditions of sale to be arranged.” References are to the “business” rather than the “property” and the “sellers” rather than the “vendors”.
20. [20]
    In the later pleadings, Mr Quach alleges that the documents referred to above were “binding written” contracts because Mr Daly (for the property contract) or Mr Daly and Mrs Daly (for the business contract) accepted payment. With respect to both contracts Mr Quach pleads that receipts were issued for those payments. Those receipts are appended to the pleading.
21. [21]
    Each of the receipts is on a preprinted form headed “Pick List/Delivery Docket” and bears the name “DALY’S NATIVE PLANTS”.
22. [22]
    The receipt for the “payment” for the property refers to “Sale To: Veansa Quach” and contains the following:

“1 holding deposit of $500.00 five hundred dollars for the address of [Mansfield property].

Received today

$500.00”

23. [23]
    The receipt for the “payment” for the business refers to “Sale To: Michael Quach” and contains the following:

“1 deposit of $500.00 for holding deposit for sale of Daly’s Native Plants as a business.

Received”

Effect of the documents relied upon by Mr Quach

24. [24]
    An agreement will not be binding upon the parties unless agreement has been reached on all terms legally necessary to constitute a contract.^[6] In a contract for the sale of land one of those terms is the price or some clear mechanism for arriving at a price. The contract which contains those terms must be in writing.^[7]
25. [25]
    The contracts which Mr Quach appear to rely on are partly written and partly oral. The difficulties associated with that need not be explored.
26. [26]
    The documents relied upon by Mr Quach are not for the sale of land or of a business. Each is headed “Provisional Contract of Sale”. In each case all the vendor has agreed to do is to take the “property” off the market in exchange for the sum of $500 as a “holding deposit”. Each explicitly provides that “[f]inal consideration, terms and conditions of sale”, and in the case of the business agreement “inclusions”, are “to be arranged.”
27. [27]
    The other matters pleaded in the various iterations of the Statement of Claim concerning valuation and so on only go to further demonstrate that no agreement has been reached between the parties. That is confirmed by the changing versions of relief sought by Mr Quach as he attempted to plead his case.

What should be done?

28. [28]
    The defendants have been exposed to a cascading set of hopeless and incoherent pleadings. They have, understandably, maintained that they could not plead in response to any of them. And they have been subjected to the costs necessarily incurred in dealing with them.
29. [29]
    There have been six versions of the Statement of Claim. Each was incompetent. The defendants have sent five r 444 letters none of which have had any effect on the plaintiff’s misguided view of events.
30. [30]
    The defendants seek, among other things, that they each have summary judgement under r 293. But that rule only allows for an application to be made by a party after filing a defence. That has not happened. They rely upon r 658 which provides:

“(1) The court may, at any stage of a proceeding, on the application of a party, make any order, including a judgment, that the nature of the case requires.

2.  The court may make the order even if there is no claim for relief extending to the order in the originating process, statement of claim, counterclaim or similar document.”

31. [31]
    That rule may allow for summary judgment to be given but, in the absence of detailed argument, I am not prepared to take that step.
32. [32]
    Mr Quach has not been able to plead a cause of action for the sale of the land or business after six attempts to do so. Nothing which was said by him allows me to conclude that he does have such a cause of action. The appropriate course is to strike out the claim and statement of claim. I do not give leave to replead.
33. [33]
    The defendants are, given Mr Quach’s history in these matters, concerned that he will commence further actions given that the events referred to in the various pleadings occurred less than six years ago. Their concern is justified. They wish to be protected against the unnecessary costs of dealing with another misguided claim. That can be done by adopting the course taken by the Court of Appeal in von Risefer v Permanent Trustee Company Ltd^[8] where the court held that it had the power to restrain the plaintiffs in that case from taking further action without leave.

Orders

34. [34]
    That the Claim and Statement of Claim be struck out.
35. [35]
    That the plaintiff, by himself, his servants and agents be restrained from instituting any proceedings or taking any further action against the defendants so far as it might relate to or concern the allegations made by him in this matter without first obtaining the leave of a judge of the Trial Division of the Supreme Court.
36. [36]
    I will hear the parties on costs.