Bellmere Park Pty Ltd v Benson

Case [2007] QCA 102

SUPREME COURT OF QUEENSLAND

CITATION:

Bellmere Park P/L as trustee for the Bellmere Park Development Trust v Cameron Samuel Benson (as personal representative of the estate of Eric Gordon Benson [2007] QCA 102

PARTIES:

BELLMERE PARK PTY LTD ACN 121 087 447 (as trustee for the BELLMERE PARK DEVELOPMENT TRUST)
(applicant/respondent)
v
CAMERON SAMUEL BENSON (as personal representative of the estate of ERIC GORDON BENSON deceased)
(respondent/appellant)

FILE NO/S:

Appeal No 949 of 2007
Appeal No 951 of 2007

SC No 542 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

13 March 2007

JUDGES:

Williams JA,  Muir and Philip McMurdo JJ

Separate reasons for judgment of each member of the Court, each concurring with the order made

ORDER:

That an order for costs on the standard basis be substituted for the indemnity costs order made on 2 February 2007 and otherwise that the appeal be dismissed with costs.

CATCHWORDS:

CONTRACTS − GENERAL CONTRACTUAL PRINCIPLES − CONSTRUCTION AND INTERPRETATION OF CONTRACTS− OTHER MATTERS − where contract entered into between appellant vendor and respondent purchaser for sale and purchase of land − where contract included a due diligence special condition − where respondent purchaser sought specific performance − whether the special condition of the contract was uncertain − whether the condition could be satisfied as a matter of subjective or objective fact − whether contract was illusory in nature − whether condition was for the benefit of both parties and thus capable of being waived by the respondent − whether costs on an indemnity basis should have been awarded

Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502, approved
Charles Lodge Pty Ltd v Mehahen, [1966] VR 161, distinguished
Gange v Sullivan (1966) 116 CLR 418, applied
Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) [2004] 1 AC 715, cited
Mallet v Mallet (1984) 156 CLR 605, cited
Meehan v Jones (1981-1982) 149 CLR 571, distinguished
Re Wickham Developments (Australia) Pty Ltd v Feros & Ors, Unreported, Supreme Court of Queensland, QS No 232 of 1994, Thomas J, 6 April 1994, compared
Sandra Investments Pty ltd v Booth (1983) 153 CLR 153, cited
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, distinguished
The Queensland Electricity Generating Board v New Hope Collieries Pty Ltd [1989] 1 LL Rep 205, cited
Toll (FBCT) Pty Limited v Alphapharm Pty Ltd (2004) 219 CLR 165, cited
Upper Hunter County District Council v Australia Chilling and Freezing Co Ltd (1968) 118 CLR 429, cited
York Air Conditioning and Refrigeration (Australasia) Pty Ltd v The Commonwealth (1949) 80 CLR 11, approved

COUNSEL:

F L Harrison SC, with D P O’Brien, for the respondent/appellant

A M Daubney SC, with D J Morgan, for the applicant/respondent

SOLICITORS:

W T Purcell Chadwick & Skelly for the respondent/appellant

Crilly Lawyers for the applicant/respondent

  1. WILLIAMS JA: I…

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Bellmere Park Pty Ltd v Benson [2007] QCA 102
Case
[2007] QCA 102
Decision Date

CaseChat Overview and Summary

Bellmere Park Pty Ltd, the appellant vendor, and Benson, the respondent purchaser, were parties to a contract for the sale and purchase of land. The contract included a due diligence special condition, which became a focal point of the dispute. Benson sought specific performance of the contract, raising questions about the certainty and satisfaction of the due diligence condition. The court was required to determine whether the condition was uncertain, if it could be satisfied objectively or subjectively, if the contract was illusory, if the condition could be waived by Benson, and if costs on an indemnity basis should have been awarded.

The court found that the due diligence condition was not uncertain, as it provided a clear framework for what was required. The court emphasised that the condition was to be satisfied as a matter of objective fact rather than subjective satisfaction. The court also rejected the argument that the contract was illusory, stating that there was a clear exchange of consideration. Furthermore, the court held that the due diligence condition was not for the benefit of both parties, and thus could not be waived by Benson. Regarding the costs, the court concluded that the indemnity costs order was inappropriate and substituted an order for costs on the standard basis.

The appeal was dismissed with costs, with the substitution of an order for costs on the standard basis. The court's decision clarified the interpretation and enforcement of specific conditions in real estate contracts, affirming the importance of objective criteria in satisfying such conditions.

Orders

Orders of the court

That an order for costs on the standard basis be substituted for the indemnity costs order made on 2 February 2007 and otherwise that the appeal be dismissed with costs.

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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