Bailey v O'Rourke and McGill

DISTRICT COURT OF QUEENSLAND

CITATION:

Bailey v. O'Rourke & Anor [2000] QSC 465

PARTIES:

ROBERT BAILEY  Plaintiff
And
MICHAEL ROBERT O'ROURKE    First Defendant
And
KAREN MARY McGILL               Second Defendant

FILE NO/S:

1990 of 1996

DIVISION:

Civil Jurisdiction

PROCEEDING:

ORIGINATING COURT:

DELIVERED ON:

2 November 2000

DELIVERED AT:

Brisbane

HEARING DATE:

27, 28 and 29 September 2000

JUDGE:

Judge Samios

ORDER:

Order that the contract be set aside.  Plaintiff's claim against the defendants dismissed.

CATCHWORDS:

Rejfek v. McElroy (1964-5) 112 CLR 517;
Krakowski v. Eurolynx (1995) 130 ALR1;

Alati v. Kruger (1995) 94 CLR 216 at 223-226;

Derry v Peek (1889) 14 AC 337;

Gould v. Vaggelas (1984) 157 CLR 215;

Gould & Birbeck & Bacon v. Mount Oxide Mines Limited (in Liquidation) (1916) 22 CLR 490 at 517;

COUNSEL:

Mr Trout for the plaintiff
Mr Forde for the first and second defendants

SOLICITORS:

Bowdens Lawyers for the plaintiff
Holland & Holland for the first and second defendants

1. The plaintiff claims against the defendants the sum of $74,083.32 for monies the plaintiff claims is due and payable by the defendants to the plaintiff pursuant to a contract.

1. The sum of $74,083.32 is the addition of $35,000 being the purchase price provided for in the contract and the sum of $39,083.32 being interest pursuant to the terms of the contract from 5 March 1995 until the date of trial.

1. The contract was entered into between the plaintiff and the defendants on 3 March 1995.  By the contract the plaintiff sold to the defendants the plaintiff's business known as "Bailey Investigations and Security Services". 

1. The plaintiff and the defendants agreed pursuant to the contract that the plaintiff would transfer the business to the defendants on 3 March 1995.  Further, that the defendants would pay the plaintiff the sum of  $35,000 as the price for the business.  With respect to the payment of the purchase price, Special Condition 3 of the contract provided-

"3.         The parties agree that no deposit shall be payable in relation to this Contract.  Payment is to be made by way of a minimum payment of $1,000.00 per month or 80% of the gross takings for the month, whichever shall be the greater with the first payment due on 1 April 1995, and each subsequent payment due on the first of each month thereafter.  The Purchaser is required to make this minimum payment, however, is entitled to pre-pay any amount owing hereunder.  The parties acknowledge that the final payment may be for an amount less than $1,000.00 or 80% of the gross takings of that final month.  The Purchasers acknowledge that all records and figures will be made available to the Vendor on request in order to verify gross takings.  Interest shall be payable on the outstanding balance at a rate of interest which shall be the equivalent of the interest rate charged on an overdraft facility by the Westpac Banking Corporation.  Interest shall run from 28 February 1994, and shall be payable monthly in advance.  The…