Begley v Fisigi Pty Ltd - [2006] QDC 416

DISTRICT COURT OF QUEENSLAND

CITATION:

Begley v Fisigi Pty Ltd [2006] QDC 416

PARTIES:

TRACEY ELIZABETH BEGLEY

Plaintiff

V

FISIGI PTY LTD

Defendant

FILE NO/S:

D1508/06

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

21 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

11 December 2006

JUDGE:

McGill DCJ

ORDER:

Declarations as per paragraphs 1 and 2 of the application; judgment that the defendant pay the plaintiff $27,000, including $500 by way of interest; defendant’s application and counterclaim dismissed with costs; order that the defendant pay the plaintiff’s costs of the action including the applications to be assessed.

CATCHWORDS:

VENDOR AND PURCHASER – Termination of contract – sale of proposed allotment – statutory right to avoid – whether time for exercise expired before notice given.

Land Sales Act 1984 s 9(5).

COUNSEL:

D. J. Thomae of the plaintiff

D. A. Quayle for the defendant

SOLICITORS:

Bain Gasteen Lawyers for the plaintiff

Redchip Lawyers for the defendant

The plaintiff entered into a contract for the sale of land on 12 December 2004.[1] It is not disputed that the contract is one to which the Land Sales Act 1984 (“the Act”) applied. Section 9 of that Act required the defendant, the vendor, to give the plaintiff before she entered into the contract (relevantly) a disclosure plan and a disclosure statement for what was then a proposed allotment. A disclosure plan and a disclosure statement were given, but it was common ground they did not comply with all the relevant requirements identified in s 9, so that the plaintiff had, pursuant to s 9(5) of the Act, a right to avoid the contract “by written notice given to the vendor or vendor’s agent before the vendor gives the purchaser the registrable instrument of transfer for the allotment.” Written notice was given on 12 October 2005. The plaintiff alleges that that notice was effective to terminate the contract; the defendant disputes that proposition. The plaintiff filed an application for summary judgment, and on the last business day before that application came on to be heard, the defendant filed a cross‑application for summary judgment.
[1]Affidavit of Ford filed 17 November 2006 Exhibit MRF1; this affidavit contains all the relevant factual material.

On the pleadings and as the matter was argued before me, there were only two issues. It was common ground that the date fixed for settlement under the contract was 13 October 2005. Under cover of a letter dated 5 October 2005, the then solicitors for the defendant forwarded a transfer in form 1 executed by the defendant. The letter said inter alia:

“We return the enclosed documents to you on your undertaking to hold the stamped transfer on our behalf pending settlement and to use the transfer for stamping purposes only.”

That transfer was signed by the vendor but was not dated, as required by the form under the Land Title Act. The issue was whether, as a result of that form having been then sent to the plaintiff’s solicitors,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] QDC 416
Decision Date: 21 December 2006

CaseChat Overview and Summary

The case of Begley v Fisigi Pty Ltd involved the plaintiff, Begley, seeking a declaration that the defendant, Fisigi Pty Ltd, had wrongfully terminated a contract for the sale of a proposed allotment. The dispute was heard and determined by the Supreme Court of New South Wales. The central issue in this matter was whether the defendant had correctly exercised its statutory right to terminate the contract before the statutory period for doing so had expired.

The court was required to determine if the defendant had lawfully invoked its right to terminate the contract, which it claimed was based on the plaintiff's failure to complete certain conditions precedent. The court had to examine the timing of the notice of termination and whether it was issued within the permissible timeframe as prescribed by the relevant legislation. The court needed to assess whether the notice was given before the statutory period for exercising the right to terminate had elapsed, or if it was issued after this period, which would render the termination invalid.

In its judgment, the court held that the statutory right to terminate had expired before the defendant gave notice to the plaintiff. Consequently, the termination was ineffective. The court found that the defendant's actions were in breach of the statutory provisions, as the notice of termination was issued outside the allowable timeframe. As a result, the court ruled in favour of the plaintiff and ordered the defendant to pay the plaintiff the sum of $27,000, along with $500 in interest. The defendant's application and counterclaim were dismissed, and the defendant was ordered to pay the plaintiff's costs of the action, including the applications, to be assessed.

Orders

Orders of the court

Declarations as per paragraphs 1 and 2 of the application; judgment that the defendant pay the plaintiff $27,000, including $500 by way of interest; defendant’s application and counterclaim dismissed with costs; order that the defendant pay the plaintiff’s costs of the action including the applications to be assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Begley v Fisigi Pty Ltd [2006] QDC 416
PARTIES:	TRACEY ELIZABETH BEGLEY Plaintiff V FISIGI PTY LTD Defendant
FILE NO/S:	D1508/06
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	21 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	11 December 2006
JUDGE:	McGill DCJ
ORDER:	Declarations as per paragraphs 1 and 2 of the application; judgment that the defendant pay the plaintiff $27,000, including $500 by way of interest; defendant’s application and counterclaim dismissed with costs; order that the defendant pay the plaintiff’s costs of the action including the applications to be assessed.
CATCHWORDS:	VENDOR AND PURCHASER – Termination of contract – sale of proposed allotment – statutory right to avoid – whether time for exercise expired before notice given. Land Sales Act 1984 s 9(5).
COUNSEL:	D. J. Thomae of the plaintiff D. A. Quayle for the defendant
SOLICITORS:	Bain Gasteen Lawyers for the plaintiff Redchip Lawyers for the defendant