Bellmere Park Pty Ltd v Benson - [2007] QSC 11

SUPREME COURT OF QUEENSLAND

CITATION:

Bellmere Park Pty Ltd v Benson [2007] QSC 11

PARTIES:

BELLMERE PARK PTY LTD (ACN 121 087 447) AS TRUSTEE FOR THE BELLMERE PARK DEVELOPMENT TRUST
(applicant)
v
CAMERON SAMUEL BENSON (AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ERIC GORDON BENSON DECEASED)
(respondent)

FILE NO/S:

BS 542 of 2007

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

1 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

30 January 2007

JUDGE:

White J

ORDER:

1. Declare that the contract dated 7 August 2006 for the sale of land by the respondent to the applicant of the land situated at 100 Stern Road, Bellmere described as Lot 2 on RP 185220 is valid and subsisting.

2. The respondent pay the applicant’s costs to be assessed on the standard basis.

CATCHWORDS:

CONTRACT – REPUDIATION – contract for sale of land – where a vendor wishes to use a due diligence clause to terminate a contract – whether due diligence clause may be for the benefit of both parties – whether clause void for uncertainty

Donaldson v Bexton [2006] QCA 559
Maggbury Pty Ltd v Hafele Australia Pty Limited (2002) 210 CLR 181
Meehan v Jones (1982) 149 CLR 571 and 587
Mika Investments Pty Ltd v FKP Group Superannuation Fund Pty Ltd (2003) QSC 005
Sandra Investments Pty Ltd v Booth (1983) 153 CLR 153

COUNSEL:

AM Daubney SC and D Morgan for the applicant
FL Harrison QC and D O’Brien for the respondent

SOLICITORS:

Crilly Lawyers for the applicant
WT Purcell Chadwick & Skelly for the respondent

The applicant as purchaser and the respondent as vendor entered into a contract on 7 August 2006 for the purchase of rural land of about 178 hectares at 100 Stern Road, Bellmere lying within the Caboolture Shire. The contract is a standard REIQ Commercial Land and Buildings Contract. The purchase price is $3.75 million with a deposit of $1,000. The date for completion is 5 February 2007. The contract contains special conditions

“SPECIAL CONDITIONS
1.   A due diligence period of 120 90 days from the date of Contract to enable us to investigate with the State Government and the Caboolture Shire Council to ascertain the liability of the proposed use of the site. Contract to become unconditional at the end of due diligence of 120 90 days.
2.   Purchasers consultants will be entitled to have access to the land for the purposes of preparing a report to submit to the State Government and the Caboolture Shire Council.
3.   Vendor to sign any necessary consents in order to enable Purchaser to lodge enquiries with the State Government or Caboolture Shire Council.”

Investigations, deposed to by Mr Cameron Dyal, a director of the purchaser, were carried out at the request of the purchaser by surveyors and planners.

The vendor entered into the contract as administrator of the estate of his late uncle. By letter dated 10 November 2006 the vendor’s solicitors wrote that two of the beneficiaries of the estate…

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.

Continue reading Bellmere Park Pty Ltd v Benson

Details

AGLC: Bellmere Park Pty Ltd v Benson [2007] QSC 11
Case: [2007] QSC 11
Decision Date: 1 February 2007

CaseChat Overview and Summary

Bellmere Park Pty Ltd brought an action against Benson in the Supreme Court of Queensland seeking a declaration that a contract for the sale of land was valid and subsisting. The dispute centred around the interpretation of a due diligence clause in the contract and whether the vendor could use it to terminate the agreement. Benson argued that the clause was void for uncertainty and that it was not intended to be for the benefit of both parties.

The court was required to determine whether the due diligence clause was valid and enforceable. The clause in question stated that the contract would terminate if the purchaser failed to complete the sale within a specified period, subject to certain conditions. The court also needed to decide if the clause could be for the benefit of both parties and if it was void for uncertainty. The key issue was whether the clause was clear and precise enough to be enforceable or if it was too vague to be meaningful.

The court found that the due diligence clause was not void for uncertainty and could be for the benefit of both parties. It held that the clause was clear and precise enough to be enforceable, and the parties had intended for it to operate as a condition precedent to the completion of the sale. The court noted that the clause provided a mechanism for the vendor to terminate the contract if the purchaser failed to complete the sale within the specified period, subject to certain conditions. The court also found that the clause was not unconscionable or unreasonable and that it did not contravene any statute or public policy.

The court declared that the contract for the sale of land was valid and subsisting and ordered Benson to pay Bellmere Park Pty Ltd’s costs. The court found that the due diligence clause was not void for uncertainty and that it could be for the benefit of both parties. The clause provided a mechanism for the vendor to terminate the contract if the purchaser failed to complete the sale within the specified period, subject to certain conditions. The court held that the clause was clear and precise enough to be enforceable and that the parties had intended for it to operate as a condition precedent to the completion of the sale.

Orders

Orders of the court

1. Declare that the contract dated 7 August 2006 for the sale of land by the respondent to the applicant of the land situated at 100 Stern Road, Bellmere described as Lot 2 on RP 185220 is valid and subsisting.

2. The respondent pay the applicant’s costs to be assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Bellmere Park Pty Ltd v Benson [2007] QSC 11
PARTIES:	BELLMERE PARK PTY LTD (ACN 121 087 447) AS TRUSTEE FOR THE BELLMERE PARK DEVELOPMENT TRUST (applicant) v CAMERON SAMUEL BENSON (AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ERIC GORDON BENSON DECEASED) (respondent)
FILE NO/S:	BS 542 of 2007
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	1 February 2007
DELIVERED AT:	Brisbane
HEARING DATE:	30 January 2007
JUDGE:	White J
ORDER:	1. Declare that the contract dated 7 August 2006 for the sale of land by the respondent to the applicant of the land situated at 100 Stern Road, Bellmere described as Lot 2 on RP 185220 is valid and subsisting. 2. The respondent pay the applicant’s costs to be assessed on the standard basis.
CATCHWORDS:	CONTRACT – REPUDIATION – contract for sale of land – where a vendor wishes to use a due diligence clause to terminate a contract – whether due diligence clause may be for the benefit of both parties – whether clause void for uncertainty Donaldson v Bexton [2006] QCA 559 Maggbury Pty Ltd v Hafele Australia Pty Limited (2002) 210 CLR 181 Meehan v Jones (1982) 149 CLR 571 and 587 Mika Investments Pty Ltd v FKP Group Superannuation Fund Pty Ltd (2003) QSC 005 Sandra Investments Pty Ltd v Booth (1983) 153 CLR 153
COUNSEL:	AM Daubney SC and D Morgan for the applicant FL Harrison QC and D O’Brien for the respondent
SOLICITORS:	Crilly Lawyers for the applicant WT Purcell Chadwick & Skelly for the respondent