Bennett & Ors v. Stewart & Anor

[2008] QSC 20

SUPREME COURT OF QUEENSLAND

CITATION:

Bennett & Ors v Stewart & Anor [2008] QSC 20

PARTIES:

Michael William Bennett and Pamela Margaret Bennett as Trustees for Bennett Superannuation Fund
(Plaintiffs)

v

Douglas James Stewart and Pinjo Margetta Stewart
(Defendants)

FILE NO/S:

BS 1244/08 and BS 489/08

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

20 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2008

JUDGE:

McMurdo J

ORDER:

1.   That the plaintiffs and defendants specifically perform the contract dated 13 October 2007; and

2.   That the application for the removal of the caveat over the property, lodged by Mr and Mrs Bennett, is dismissed.

CATCHWORDS:

CONTRACT – INTERPRETATION – UNCERTAINTY – identification of parties – where purchaser named in contract not a legal entity – whether contract should be considered as a whole – whether signatures sufficiently identify purchaser

CONTRACT – VOID CONTRACTS – uncertainty

CONTRACT – RECTIFICATION – where contract names a superannuation trust but not the trustee as purchaser

CONTRACT – PROPERTY – STATUTE OF FRAUDS – REQUIREMENT OF WRITING – what constitutes sufficient memorandum or note of contract

s 59 Property Law Act 1974 (Qld)

Craddock Bros Ltd v Hunt [1923] 2 Ch 135, cited

Di Biase v Rezek [1971] 1 NSWLR 735, applied

Gebauer Nominees Pty Ltd v Cole as Trustee for Hotrox Charcoal Unit Trust t/as Hotrox Charcoal Co [2006] WASCA 169, applied

Hillas & Co Ltd v Arcos Ltd (1932) 38 Com Cas 23, applied

Powercor Australia Ltd v Pacific Power [1999] VSC 110, applied

Prints For Pleasure Ltd v Oswald-Sealy (Overseas) Ltd [1968] 3 NSWR 761, applied

Rosser v Austral Wine and Spirit Co Pty Ltd [1980] VR 313, applied

Rossiter v Miller (1878) 3 App Cas 1124, applied

Sindel v Georgiou (1984) 154 CLR 661, cited

Whiting v Diver Plumbing & Heating Ltd [1992] 1 NZLR 560, cited

COUNSEL:

Mr P Freeburn SC for the plaintiffs

Mr DJ Campbell SC and Mr M Johnson for the defendants

SOLICITORS:

Quinn and Scattini on behalf of the plaintiffs

Hemming and Hart on behalf of the defendants

1. The plaintiffs, Mr and Mrs Bennett, and the defendants, Mr and Mrs Stewart, signed a contract for the sale of the Stewarts’ house and land at Mt Cotton last October.  The price was $1,300,000 with settlement 90 days from the contract.  The contract document is in the standard form approved by the REIQ and the Queensland Law Society. 

1. The Bennetts wish to enforce that contract, but the Stewarts say that the contract is void for uncertainty or that it is unenforceable because there is no sufficient memorandum or note of it[1].

   [1]s 59 of the Property Law Act 1974 (Qld).

1. The issue is whether the form of contract sufficiently identifies the buyer.  The Bennetts each signed as buyers.  But the schedule to the contract document contained these words next to the word “buyer”:

“Bennett Superannuation Fund”

1. The Stewarts say that because such a fund is not a…