SUPREME COURT OF QUEENSLAND
CITATION:
BGM Projects Pty Ltd v Durmaz [2020] QCA 146
PARTIES:
BGM PROJECTS PTY LTD
ACN 102 165 328
(respondent/applicant)
v
STEVE DURMAZ
(appellant/respondent)FILE NO/S:
Appeal No 5552 of 2020
SC No 12878 of 2019DIVISION:
Court of Appeal
PROCEEDING:
Application to Strike Out
Application for Security for CostsORIGINATING COURT:
Supreme Court at Brisbane – [2020] QSC 87 (Brown J)DELIVERED ON:
30 June 2020
DELIVERED AT:
Brisbane
HEARING DATE:
19 June 2020
JUDGES:
Morrison JA
ORDERS:
1. The notice of appeal is struck out.
2. The appellant pay the respondent’s costs of and incidental to the application on the standard basis.
CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – STRIKE OUT – where the respondent/applicant has applied to strike out the notice of appeal – where in the alternative the respondent/applicant seeks an order for security for costs – where Durmaz Corporation purchased a lot in the respondent/applicant’s development – where the contract of sale included a series of covenants governing the design and construction of dwellings on the lot – where Annexures C and D to the contract of sale were Deeds in favour of the respondent/applicant, executed on behalf of Durmaz Corporation by the appellant/respondent – where the appellant/respondent caused Durmaz Corporation to construct a non-approved shed on the lot – where there was no challenge to the fact that the shed had been constructed without approval from BGM, in breach of the building covenants, and in breach of the order of Applegarth J made on 4 June 2019 – where Brown J found that it was clear that Durmaz Corporation had signed the Deeds and agreed to be bound by the building covenants – where the order against which the appeal has been brought was that of Brown J – where the order was that Durmaz Corporation Pty Ltd cause a constructed shed on real property to be removed, and pay costs on an indemnity basis – whether the notice of appeal should be struck out
Uniform Civil Procedure Rules 1999 (Qld), r 371(2)
BGM Projects Pty Ltd v Durmaz Corporation Pty Ltd [2020] QSC 87, cited
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536, cited
Re Cameron [1996] 2 Qd R 218; [1996] QCA 37, cited
Robertson v Hollings & Ors[2009] QCA 303, cited
von Risefer v Permanent Trustee Co Pty Ltd [2005] 1 Qd R 681; [2005] QCA 109, citedCOUNSEL:
R A Quirk for the respondent/applicant
The appellant/respondent appeared on his own behalfSOLICITORS:
Clinton Mohr Lawyers for the respondent/applicant
The appellant/respondent appeared on his own behalf
MORRISON JA: The respondent has applied to strike out the notice of appeal in this matter: (i) pursuant to the inherent jurisdiction of the Court on the basis that it is frivolous, vexatious or an abuse of process; or (ii) pursuant to r 371(2) of the Uniform Civil Procedure Rules 1999 (Qld) as…
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- AGLC
- BGM Projects Pty Ltd v Durmaz [2020] QCA 146
- Case
- [2020] QCA 146
- Decision Date
CaseChat Overview and Summary
The court held that the appeal was incompetent because the party appealing, Mr Durmaz, was not the party subject to the orders made by Brown J. Furthermore, the grounds for appeal were not clearly stated in the notice of appeal and were only vaguely outlined in the submissions. The court found that Mr Durmaz's primary contention was that BGM had made a misrepresentation regarding the binding nature of the covenants, which was not supported by any evidence. The court concluded that there were substantial obstacles to the appeal being successful and that the appeal notice should be struck out. The court also ordered that the appellant pay the respondent's costs on the standard basis.
Orders
Orders of the court
1. The notice of appeal is struck out.
2. The appellant pay the respondent’s costs of and incidental to the application on the standard basis.
Background
Background to the litigation
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
Mr Durmaz contended that not all owners had signed Deeds binding them to the building covenants, and therefore the covenants were illegal. He also contended that BGM had engaged in misleading conduct. However, Brown J found that he had presented no evidence to support those allegations, nor had he sought an adjournment to do so. In any event, her Honour found that it was clear that Durmaz Corporation had signed the Deeds and agreed to be bound by the building covenants.[6] The orders made were that Durmaz Corporation remove the shed and pay costs on an indemnity basis.[6]Reasons below at [54].Consideration There are quite a number of substantial obstacles confronting success in this appeal. I will attempt to summarise them. First, the orders of Justice Brown were made against Durmaz Corporation, not Mr Durmaz personally. However, it is Mr Durmaz, personally, who is the appellant. The appeal is incompetent as the party the subject of the challenged orders is not a party to the appeal. Secondly, the Notice of Appeal states the grounds to be: “… all grounds appeal based on the misrepresentation of contract for covernant [sic]”. The only articulation of the grounds appears in the outline filed by Mr Durmaz. That included these points:(a)he was asked to enter into a deed of covenant before the purchase commenced and agreed “with the belief that there was no ill intention by the contract”;(b)soon after, two things became apparent; one was that “my proposed build was not allowed for any reasonable reasons given to me”; and the second was that he “later learned from other residents that not everyone had entered into a signed deed of covenant”;(c)that was “a misrepresentation of the so called covenant and continued to this day, no purchaser was ever informed of this fact before signing and entering into a contract that has no value as a proposed product”;(d)he had recently found a file of a Mr Lee, “who had no contract of covenant in purchase nor did the previous owner”; after the case before Brown J he had sought access to that file; and(e)his contention was that: “this whole event has been about the developer and his years of continuing efforts to impede upon residents, harass and hinder by almost all means in an effort to protect the contracts survival and preservation against litigation, when the first non signatories appeared instead of advising residents of the estate of the new situation with the contracts now to be varied and changed so that it may suit the new reality on the ground”; and “BGM Projects Pty Ltd continued to misrepresent the contracts and impede upon residents with the illegal misuse of the contracts causing individuals personal and financial hardship and harm”. Thus, as developed during oral submissions before me, Mr Durmaz has articulated only one ground as the basis for the appeal. It is that the developer, BGM, had made a material misrepresentation in the introductory words of the community development standards and building covenant conditions. Specifically it was in the sentence: “Buyers may take comfort in the knowledge that their investment is not devalued by an ill-balanced mix of poorly designed houses or temporary dwellings.” The contention advanced was that there was evidence that some other lot owners were not bound to the covenants as they were not included in their contracts of sale, thereby making the assertion that all owners were bound, and the assertion that buyers could take comfort that their investment would not be devalued, misleading or deceptive.