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Blackman v Milne

Blackman v Milne

Case [2006] QSC 350 23 November 2006

Breach of Contract

Specific Performance

Statutory Interpretation

Contract Law

Property Law

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

Blackman v Milne [2006] QSC 350

PARTIES:

BRENT RUSSELL BLACKMAN and TAYNA KAY BLACKMAN
(Applicants)

v

EVAN GEORGE MILNE and MARYANNE BERNADETTE MILNE
(Respondents)

FILE NO:

BS 9439 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

23 November 2006

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

13 November 2006

JUDGE:

Douglas J

ORDER:

1. Declare that the contract dated 4 October 2006 (“the contract”) made between the applicants as buyers and the respondents as sellers for the sale of the property situated at 9 Gretna Street Mansfield in the State of Queensland and described as Lot 1 on RP 898444, County of Stanley, Parish of Bulimba, did not terminate on or about 12 October 2006 pursuant to its special conditions.

2.Declare that the notice of termination dated 13 October 2006 from Conveyancing Works, solicitors for the respondents, to Georgeson & Company, solicitors for the applicants, is ineffective.

3.Declare that, by letter dated 16 October 2006 from Georgeson & Company to Conveyancing Works, the applicants duly delivered a notice of election pursuant to the special conditions of the contract.

4.Declare that the contract ought to be specifically performed and carried into execution.

Order that the respondents pay the applicants’ costs of and incidental to the application.5.

Liberty to apply.6.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – WAIVER OF STATUTORY RIGHTS – PROVISIONS CONFERRING PRIVATE RIGHTS – where right conferred by statute allowed buyer to set aside contract if seller or seller’s agent failed to take certain steps – whether right conferred by statute was a private or public benefit

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS – whether proper notice given under the special conditions

Property Agents and Motor Dealers Act 2000, s 365, s 365(2)(c), s 366D, s 367, s 368, s 369, s 370

Alghussein Establishment v Eton College [1988] 1 WLR 587, cited
Carpentaria Investments Pty Ltd v Air [1972] Qd R 436, cited
Celik Developments Pty Ltd v Mayes [2005] QSC 224, cited
Commonwealth v Verwayen (1990) 170 CLR 394, cited
Gange v Sullivan (1966) 116 CLR 418, cited
Grieve v Enge [2006] QCA 213, cited
Grieve v Enge [2006] QSC 037, cited
MNM Developments Pty Ltd v Gerrard [2005] 2 Qd R 515, cited
Quinn Villages Pty Ltd v Mulherin [2006] QCA 433, cited
Re Permanent Trustee Nominees (Canberra) Limited [1989] 1 Qd R 314, followed

COUNSEL:

G J Handran for the applicants
P A Looney for the respondents

SOLICITORS:

Simmonds Crowley & Galvin for the applicants
O'Reilly Lillicrap for the respondents

Douglas J: On 4 October 2006 Mr and Mrs Blackman, the applicants, signed a form of contract to purchase a residential house property, at 9 Gretna Street, Mansfield. The purchase price was $500,000 and they paid a deposit of $20,000 to the sellers’ agent, a Mr Ugrinic of Eastside First National Real Estate on 5 October.…

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 Blackman v Milne

Details

AGLC: Blackman v Milne [2006] QSC 350
Case: [2006] QSC 350
Decision Date: 23 November 2006

CaseChat Overview and Summary

In Blackman v Milne, the applicants, Mr and Mrs Blackman, sought to enforce a contract for the sale of property against the respondents, Mr and Mrs Milne. The dispute centred on whether the respondents could validly terminate the contract for the sale of a property at 9 Gretna Street, Mansfield, Queensland, and whether they had properly delivered the necessary notices to do so. The applicants contended that the contract remained valid and enforceable, while the respondents argued that they had terminated the contract correctly. The court had to determine whether the statutory right conferred by the legislation allowed the applicants to set aside the contract if the respondents failed to take certain steps and whether the statutory right was a private or public benefit.

The central legal issues in this case were whether the statutory right conferred by the legislation was a private right allowing the applicants to set aside the contract if the respondents failed to take certain steps, and whether the proper notice was given under the special conditions of the contract. The applicants argued that the right conferred by the statute was a private right and that the respondents had not delivered the proper notice required to terminate the contract. The respondents contended that the statutory right was not a private right but rather a public benefit and that they had given the proper notice of termination.

The court held that the statutory right conferred by the legislation was a private right allowing the applicants to set aside the contract if the respondents failed to take certain steps. The court found that the statutory right was intended to provide a remedy to the buyer if the seller or the seller's agent failed to take specific steps, thus conferring a private benefit to the buyer. Furthermore, the court determined that the respondents had not delivered the proper notice of termination, as the notice did not comply with the requirements of the special conditions of the contract. Consequently, the court declared that the contract remained valid and enforceable, and that the applicants had duly delivered a notice of election.

The court ordered that the contract dated 4 October 2006 between the applicants and respondents for the sale of the property at 9 Gretna Street, Mansfield, Queensland, did not terminate on or about 12 October 2006 pursuant to its special conditions. The court also declared that the notice of termination dated 13 October 2006 from the respondents' solicitors to the applicants' solicitors was ineffective. Additionally, the court found that the applicants had delivered a valid notice of election by letter dated 16 October 2006. The court further declared that the contract ought to be specifically performed and carried into execution. Lastly, the court ordered the respondents to pay the applicants' costs of and incidental to the application.

Orders

Orders of the court

1. Declare that the contract dated 4 October 2006 (“the contract”) made between the applicants as buyers and the respondents as sellers for the sale of the property situated at 9 Gretna Street Mansfield in the State of Queensland and described as Lot 1 on RP 898444, County of Stanley, Parish of Bulimba, did not terminate on or about 12 October 2006 pursuant to its special conditions.

2.Declare that the notice of termination dated 13 October 2006 from Conveyancing Works, solicitors for the respondents, to Georgeson & Company, solicitors for the applicants, is ineffective.

3.Declare that, by letter dated 16 October 2006 from Georgeson & Company to Conveyancing Works, the applicants duly delivered a notice of election pursuant to the special conditions of the contract.

4.Declare that the contract ought to be specifically performed and carried into execution.

Order that the respondents pay the applicants’ costs of and incidental to the application.5.

Liberty to apply.6.

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.

Citations

AGLC Citation

Blackman v Milne [2006] QSC 350

Most Recent Citation

South Esplanade Developments Pty Ltd v Astill [2007] SADC 24

Cases citing this decision · 13 of 13 shown

Number One Quality Homes Pty Ltd v Murphy
[2024] QCAT 605

…R 741 Barport Pty Ltd v Baum [2019] VSCA 167 Beckford Nominees Pty Ltd v Shell Co of Australia Ltd (1986) 73 ALR 373 Blackman v Milne [2006] QSC 350; [2007] 1 Qd R 198 Collis v Currumbin Investments Pty Ltd [2009] QSC 297 Commonwealth v Verwayen (1990) 170 CLR 394 Considine v Citicorp Australia Ltd [1981] 1 NSWLR…
Number One Quality Homes Pty Ltd v Murphy & Anor
[2020] QCAT 339

…ttention. His Honour appears to have agreed with Blackman , stating: [15] Mr O’Shea referred in response to the comparable case of Blackman v Milne [2006] QSC 350, paras 14 and 20. I conclude that by his conduct in October 2008, Mr Collis waived his “statutory right … to have the buyer’s attention directed to the…
Gallagher v Boylan
[2011] QSC 94 Para 1

…It was the purchasers in Blackman v Milne [2006] QSC 350 ( Blackman ) who wished to enforce the contract (which was entered into after the 2005 amendments) and relied on their express waiver of the right conferred by s 365(2)(c)(ii) of the Act. The vendors were seeking to rely on their agent’s failure to direct t…
Marchesi v Viridian Noosa Pty Ltd
[2010] QSC 324 Para 1

…v Corrumbin Investments Pty Ltd [2009] QSC 297 at [19]; Mirvac Queensland Pty Ltd v Beioley [2010] QSC 113 at [33]. [10][2007] 1 Qd R 198, 201-203; [2006] QSC 350 at [14]-[21].…
Turrisi Properties P/L v LJ and BJ Investments P/L; Turrisi Properties P/L v McVicar; Turrisi Properties P/L v Mulcahy
[2010] QSC 325 Para 1

…a benefit only on a purchaser, or did it intend to confer a benefit on the whole community? [123]See, for example, Blackman v Milne [2007] 1 QdR 198; [2006] QSC 350 where Douglas J considered whether the right granted by s 365(2)(c)(ii) of the Property Agents and Motor Dealers Act 2000 was a public or a private r…
Azzura Holdings Pty Ltd v Eyles-Bennett
[2010] QDC 119 Para 1

…that she has validly terminated the contract there are disputed issues of fact which can only be determined at a trial. [46] See Blackman v Milne [2006] QSC 350 per Douglas J at paragraph [20].…
Collis v Currumbin Investments Pty Ltd
[2009] QSC 297 Para 1

…Mr O’Shea referred in response to the comparable case of Blackman v Milne [2006] QSC 350, paras 14 and 20. I conclude that by his conduct in October 2008, Mr Collis waived his “statutory right… to have the buyer’s attention directed to the warning statement”, that being “a statutory right created for the buyer’s…
Sultana Investments Pty Ltd v Cellcom Pty Ltd
[2008] QCA 357

…9, s 36, s 128, s 133, s 138, s 140, s 573A, s 573B, s 573C, s 573D Blackman v Milne [2007] 1 Qd R 198; [2006] QSC 350, cited Colbron v St Bees Island Pty Ltd (1995) 56 FCR 303, cited Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209, cited Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418;…
Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd
[2008] QSC 261 Para 6

…formality. Some of the issues which would arise in that context were discussed by Douglas J in Blackman v Milne [43] and Juniper v Roberts [44]. [43] [2006] QSC 350. [44] [2007] QSC 379. Was there a binding contract?…
Tudor Developments Pty Ltd v Makeig
[2008] NSWCA 263 Para 1

…3] NSWCA 305; (2004) Aust Contract Rep 90-181; Australasian Concrete Services v Multiplex Constructions Pty Ltd [1999] NSWSC 1140; Blackman v Milne [2006] QSC 350; [2007] 1 Qd R 198; Juniper v Roberts [2007] QSC 379; Astill v South Esplanade Developments Pty Ltd [2007] SASC 231; (2007) ANZ ConvR 534; South Esplan…
Juniper v Roberts
[2007] QSC 379 Para 1

…r advertising it for sale amounted to a representation that he would not rely upon his statutory right to terminate. I recognised in Blackman v Milne [2006] QSC 350 that it was open to a buyer to waive a breach of this legislation by a seller on the basis that s. 365(2)(c)(ii) of this Act was a right created for…
Astill v South Esplanade Developments Pty Ltd
[2007] SASC 231 Para 26

…LR 87; Andrew Knox Holdings Pty Ltd v ANZ Banking Group Ltd & Esanda Finance Corporation Ltd (1996) 188 LSJS 385; Blackman & Blackman v Milne & Milne [2006] QSC 350. The short answer to the submission based on those cases is that each case turns on the terms of the legislation then under consideration. In none of…
South Esplanade Developments Pty Ltd v Astill
[2007] SADC 24 Para 2

…ter) statutory rights of recision were held to be subject to principles of waiver and election in spite of provisions similar to s33 and s16(a). [15] [2006] QSC 350 [16] (1996) 188 LSJS 385 Myles Pearce…

View all 13 citing cases →

Cases cited in this decision · 10 of 10 shown

Quinn Villages Pty Ltd v Mulherin
[2006] QCA 433 Para 1

…its own wrong nor take advantage of the non-fulfilment of a condition which the party has itself brought about; see Quinn Villages Pty Ltd v Mulherin [2006] QCA 433 at [23]-[25], Gange v Sullivan (1966) 116 CLR 418, 441 and Alghussein Establishment v Eton College [1988] 1 WLR 587, 591-595. In those circumstances,…
Grieve v Enge
[2006] QCA 213 Para 1

…the protection of purchasers, see also the discussion in Grieve v Enge [2006] QSC 037 at [34]-[41] (not adverted to in the appeal, Grieve v Enge [2006] QCA 213); MNM Developments Pty Ltd v Gerrard [2005] 2 Qd R 515, 519-520 at [16]-[17], [20]-[21] and Celik Developments Pty Ltd v Mayes [2005] QSC 224 at [22].…
Celik Developments Pty Ltd v Mayes
[2005] QSC 224 Para 1

…nge [2006] QCA 213); MNM Developments Pty Ltd v Gerrard [2005] 2 Qd R 515, 519-520 at [16]-[17], [20]-[21] and Celik Developments Pty Ltd v Mayes [2005] QSC 224 at [22].…
Commonwealth v Verwayen
[1990] HCA 39 Para 1

…See also Commonwealth v Verwayen (1990) 170 CLR 394, 496. The issue is whether the statutory provision here creates a private right merely for the private benefit of an individual such as the plaintiff or is a provision reflecting a public policy for the benefit of the community.…
Gange v Sullivan
[1966] HCA 55 Para 1

…lfilment of a condition which the party has itself brought about; see Quinn Villages Pty Ltd v Mulherin [2006] QCA 433 at [23]-[25], Gange v Sullivan (1966) 116 CLR 418, 441 and Alghussein Establishment v Eton College [1988] 1 WLR 587, 591-595. In those circumstances, he submitted that the innocent party may waive no…
Lieberman v Morris
[1944] HCA 13

…“The principle to be applied in such a case is shortly stated in the maxim quilibet potest renunciare juri pro se introducto. In Wilson v. McIntosh [1894] A.C. 129 the Privy Council was concerned with an application to bring land under the Real Property Act . Section 23 of the Act provided that a ca…
Davies v Davies
[1919] HCA 17

…“The principle to be applied in such a case is shortly stated in the maxim quilibet potest renunciare juri pro se introducto. In Wilson v. McIntosh [1894] A.C. 129 the Privy Council was concerned with an application to bring land under the Real Property Act . Section 23 of the Act provided that a ca…
Phillips v Martin (New South Wales)
[1890] UKPC 1

…“The principle to be applied in such a case is shortly stated in the maxim quilibet potest renunciare juri pro se introducto. In Wilson v. McIntosh [1894] A.C. 129 the Privy Council was concerned with an application to bring land under the Real Property Act . Section 23 of the Act provided that a ca…
Grieve v Enge
[2006] QSC 037 Para 1

…ng statement and the relevant contract. As to the aim of the chapter being the protection of purchasers, see also the discussion in Grieve v Enge [2006] QSC 037 at [34]-[41] (not adverted to in the appeal, Grieve v Enge [2006] QCA 213); MNM Developments Pty Ltd v Gerrard [2005] 2 Qd R 515, 519-520 at [16]-[17], […
[1988] 1 WLR 587
[1988] 1 WLR 587 Para 1

…e Quinn Villages Pty Ltd v Mulherin [2006] QCA 433 at [23]-[25], Gange v Sullivan (1966) 116 CLR 418, 441 and Alghussein Establishment v Eton College [1988] 1 WLR 587, 591-595. In those circumstances, he submitted that the innocent party may waive non-compliance or, alternatively, the condition may be treated, as a…

Legislation cited in this decision · 1

Property Agents and Motor Dealers Act 2000 (Qld)
365 2 mentions (from Para 1)

CITATION:	Blackman v Milne [2006] QSC 350
PARTIES:	BRENT RUSSELL BLACKMAN and TAYNA KAY BLACKMAN (Applicants) v EVAN GEORGE MILNE and MARYANNE BERNADETTE MILNE (Respondents)
FILE NO:	BS 9439 of 2006
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	23 November 2006
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	13 November 2006
JUDGE:	Douglas J
ORDER:	1. Declare that the contract dated 4 October 2006 (“the contract”) made between the applicants as buyers and the respondents as sellers for the sale of the property situated at 9 Gretna Street Mansfield in the State of Queensland and described as Lot 1 on RP 898444, County of Stanley, Parish of Bulimba, did not terminate on or about 12 October 2006 pursuant to its special conditions. 2.Declare that the notice of termination dated 13 October 2006 from Conveyancing Works, solicitors for the respondents, to Georgeson & Company, solicitors for the applicants, is ineffective. 3.Declare that, by letter dated 16 October 2006 from Georgeson & Company to Conveyancing Works, the applicants duly delivered a notice of election pursuant to the special conditions of the contract. 4.Declare that the contract ought to be specifically performed and carried into execution. Order that the respondents pay the applicants’ costs of and incidental to the application.5. Liberty to apply.6.
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – WAIVER OF STATUTORY RIGHTS – PROVISIONS CONFERRING PRIVATE RIGHTS – where right conferred by statute allowed buyer to set aside contract if seller or seller’s agent failed to take certain steps – whether right conferred by statute was a private or public benefit CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS – whether proper notice given under the special conditions Property Agents and Motor Dealers Act 2000, s 365, s 365(2)(c), s 366D, s 367, s 368, s 369, s 370 Alghussein Establishment v Eton College [1988] 1 WLR 587, cited Carpentaria Investments Pty Ltd v Air [1972] Qd R 436, cited Celik Developments Pty Ltd v Mayes [2005] QSC 224, cited Commonwealth v Verwayen (1990) 170 CLR 394, cited Gange v Sullivan (1966) 116 CLR 418, cited Grieve v Enge [2006] QCA 213, cited Grieve v Enge [2006] QSC 037, cited MNM Developments Pty Ltd v Gerrard [2005] 2 Qd R 515, cited Quinn Villages Pty Ltd v Mulherin [2006] QCA 433, cited Re Permanent Trustee Nominees (Canberra) Limited [1989] 1 Qd R 314, followed
COUNSEL:	G J Handran for the applicants P A Looney for the respondents
SOLICITORS:	Simmonds Crowley & Galvin for the applicants O'Reilly Lillicrap for the respondents