Blackman v Milne

Case [2006] QSC 350


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

  1. 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.…

Continue reading Blackman v Milne

Sign in free to access the full text

Details
AGLC
Blackman v Milne [2006] QSC 350
Case
[2006] QSC 350
Decision Date

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.