Bonel v Sutton - [2013] QCAT 414

CITATION:

Bonel v Sutton & Anor [2013] QCAT 414

PARTIES:	Liberal John Bonel (Applicant)
v
Donald James Howard Sutton (First Respondent) Shialand Pty Ltd ACN 108309799 (Second Respondent)

APPLICATION NUMBER:

MCDO2902/12

MATTER TYPE:

Other minor civil disputes matters

HEARING DATE:

22 April and 9 May 2013

HEARD AT:

Brisbane

DECISION OF:

Jeremy Gordon, Adjudicator

DELIVERED ON:

31 July 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The First Respondent is ordered to pay to the Applicant the sum of $9,333.97 made up as follows:-
Liquidated amount: $7,262.51
Interest: $1,973.46
Filing fee: $98.00

CATCHWORDS:

CLAIM FOR BREACH OF COVENANT IN DEED – whether this is a claim for a debt or liquidated demand of money to give QCAT jurisdiction – whether overdue rates (being a statutory charge) are an encumbrance within the meaning of the deed – whether other parts of the deed preclude an award of damages

Queensland Civil and Administrative Tribunal
Act 2009, Schedule 3
Local Government Act 2009 s 95
Local Government Regulation 2012 ss 127, 132

Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138
Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288
Solar Energy Australia Group Pty Ltd v Bannink [2013] QCATA 100
Solahart Mackay & Ors v Summers [2013] QCATA 113

Davisbourne Pty Ltd v Kis (Australia Pty Ltd) [1985] 2 Qd.R. 341
Wallace v Love (1922) 31 CLR 156
Perpetual Trustees Australia Ltd v Bank of Western Australia Ltd & Others [2004] QCA 345
Repatriation Commission v Tsourounakis [2007] FCAFC 29

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

In person

RESPONDENT:

In person, also representing the Second Respondent

REASONS FOR DECISION

Under the terms of the bespoke agreement in a deed executed by the parties, did the Respondents agree to transfer certain properties to the Applicant free from overdue rates? If so, are the Respondents liable to pay the amount of such overdue rates to the Applicant? Does QCAT have jurisdiction to hear this matter?

This was not a typical land transfer. The properties were transferred to the Applicant fulfilling a legal obligation to do so in a deed dated 3 September 2010. That deed was drafted by lawyers and was executed by the parties. It was entitled “Deed of Compromise and Release” and this accurately described its purpose.

Some four years prior to this deed, the Applicant had lent to the Respondent money so that the Respondent could develop some land in Bundaberg. The Respondent failed to make the contractual repayments on that loan, and on 26 May 2009 the parties executed a deed entitled a “Deed of Suspension of Rights Agreement”. Under that earlier deed, the Respondents agreed to transfer certain properties upon the happening of certain events.

Although the triggering events occurred, the transfers which should have followed did not do so. Proceedings were started in the Supreme Court to enforce the deed. The proceedings were compromised and terms of settlement were set out in the Deed of Compromise and Release of 3 September 2010.

This…

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 Bonel v Sutton

Details

AGLC: Bonel v Sutton [2013] QCAT 414
Case: [2013] QCAT 414
Decision Date: 31 July 2013

CaseChat Overview and Summary

The case of Bonel v Sutton involved a dispute over a claim for breach of a covenant in a deed. The Applicant, Bonel, sought to recover the sum of $9,333.97 from the First Respondent, Sutton, for alleged breaches of the covenant. The claim was brought before the Queensland Civil and Administrative Tribunal (QCAT). The primary issue before QCAT was whether the claim constituted a debt or liquidated demand of money to confer jurisdiction on QCAT. Additionally, the court needed to determine whether overdue rates, which constituted a statutory charge, qualified as an encumbrance within the meaning of the deed. Finally, the court had to consider whether other parts of the deed precluded an award of damages.

In examining the nature of the claim, QCAT considered the legal definition of a debt or liquidated demand. It was determined that the claim fell within the category of a liquidated demand as it involved a specified sum of money owed for breaches of the deed. The court also examined the concept of encumbrances as defined in the deed, concluding that the overdue rates did indeed constitute an encumbrance. Furthermore, QCAT found that the deed did not preclude an award of damages, allowing the Applicant to recover the full amount claimed.

QCAT ultimately ruled in favour of the Applicant, Bonel, and ordered the First Respondent, Sutton, to pay the sum of $9,333.97. This amount comprised the liquidated sum of $7,262.51, interest of $1,973.46, and a filing fee of $98.00. The decision underscores the importance of understanding the specific terms of a deed and the implications of statutory charges when dealing with property-related disputes.

Orders

Orders of the court

1. The First Respondent is ordered to pay to the Applicant the sum of $9,333.97 made up as follows:-

Liquidated amount: $7,262.51

Interest: $1,973.46

Filing fee: $98.00

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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