Boylan v Gallagher - [2011] QCA 240

SUPREME COURT OF QUEENSLAND

CITATION:

Boylan v Gallagher [2011] QCA 240

PARTIES:

KYM BOYLAN
(appellant)
v
DONNA MARIE GALLAGHER
(respondent)

FILE NO/S:

Appeal No 4482 of 2011
SC No 7518 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

5 September 2011

JUDGES:

Fraser and Chesterman JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.Appeal allowed with costs.

2.Judgment and orders set aside.

3.The plaintiff’s claim be dismissed.

4.Judgment for the appellant on the counterclaim in the sum of $2,100,000, together with interest thereon at the rate of 10 per cent from 20 November 2008 to the date of judgment pursuant to s 47(1) of the Supreme Court Act 1995 (Qld).

5.Leave to the parties to make submissions as to the costs of the proceedings in the Trial Division in accordance with paragraph 52 of Practice Direction No 2 of 2010.

CATCHWORDS:

CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNINGS AND LIKE MATTERS – where the appellant and respondent entered into a put and call option deed for the purchase of land – where the respondent, as the prospective purchaser, executed a warning statement, attached it to the deed and forwarded the documents to the appellant’s solicitors – where the appellant, as the prospective vendor, executed the deed and returned it to the respondent’s solicitor – where the appellant purported to exercise the put option – where the respondent contended that she was not bound by the deed because the appellant’s solicitors had not directed the attention of the respondent’s solicitor to the warning statement in their cover letter, as required by s 365(2)(c)(ii) of the Property Agents and Motor Dealers Act 2000 (Qld) – whether the respondent was bound by the deed and therefore in breach of the resulting contract of sale

Property Agents and Motor Dealers Act 2000 (Qld), s 363, s 365, s 365(2)(c), s 365(3)

Gallagher v Boylan [2011] QSC 94, overruled
Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2008] QSC 261, distinguished

COUNSEL:

J McKenna SC for the appellant
D Savage SC for the respondent

SOLICITORS:

Reichman Lawyers for the appellant
Morgan Conley Lawyers for the respondent

FRASER JA: In May 2008 the appellant, the registered proprietor of land on the Gold Coast, and the respondent entered into a “Put & Call Option Deed” and the respondent paid a call option fee and a deposit totalling $250,000 under that deed. The respondent did not duly exercise her “call option” to purchase the land for $5,500,000, with the result that the appellant became entitled to exercise a “put option” to require the respondent to purchase the land for the same price pursuant to a contract in the form annexed to the deed.

In October 2008…

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 Boylan v Gallagher

Details

AGLC: Boylan v Gallagher [2011] QCA 240
Case: [2011] QCA 240
Decision Date: 16 September 2011

CaseChat Overview and Summary

The appellant and respondent entered into a put and call option deed for the purchase of land, with the respondent executing a warning statement and attaching it to the deed. The appellant returned the executed deed to the respondent’s solicitor, who forwarded it to the respondent. The appellant then purported to exercise the put option, leading to a dispute over whether the respondent was bound by the deed. The respondent argued that the appellant had failed to comply with statutory obligations under the Property Agents and Motor Dealers Act 2000 (Qld), specifically section 365(2)(c)(ii), which required the appellant’s solicitors to direct the respondent’s solicitor’s attention to the warning statement in their cover letter. The central legal issue was whether this failure meant the respondent was not bound by the deed and thus not in breach of the resulting contract of sale.

The court examined the statutory requirement and the procedural steps taken by the parties. It determined that the respondent had executed and signed the warning statement, which was attached to the deed, and there was no requirement for the appellant’s solicitors to draw specific attention to it in the cover letter. The court found that the statutory obligation was satisfied by the respondent’s execution of the warning statement. Consequently, the court held that the respondent was bound by the deed and in breach of the resulting contract of sale.

Given the court's findings, the appeal was allowed, and the orders of the Trial Division were set aside. The plaintiff’s claim was dismissed, and judgment was entered in favour of the appellant on the counterclaim. The appellant was awarded $2,100,000, plus interest at 10 per cent from 20 November 2008 to the date of judgment, as per section 47(1) of the Supreme Court Act 1995 (Qld). The court also granted leave to the parties to make submissions regarding the costs of the proceedings in the Trial Division, in accordance with Practice Direction No 2 of 2010.

Orders

Orders of the court

1.Appeal allowed with costs.

2.Judgment and orders set aside.

3.The plaintiff’s claim be dismissed.

4.Judgment for the appellant on the counterclaim in the sum of $2,100,000, together with interest thereon at the rate of 10 per cent from 20 November 2008 to the date of judgment pursuant to s 47(1) of the Supreme Court Act 1995 (Qld).

5.Leave to the parties to make submissions as to the costs of the proceedings in the Trial Division in accordance with paragraph 52 of Practice Direction No 2 of 2010.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Boylan v Gallagher [2011] QCA 240
PARTIES:	KYM BOYLAN (appellant) v DONNA MARIE GALLAGHER (respondent)
FILE NO/S:	Appeal No 4482 of 2011 SC No 7518 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	5 September 2011
JUDGES:	Fraser and Chesterman JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1.Appeal allowed with costs. 2.Judgment and orders set aside. 3.The plaintiff’s claim be dismissed. 4.Judgment for the appellant on the counterclaim in the sum of $2,100,000, together with interest thereon at the rate of 10 per cent from 20 November 2008 to the date of judgment pursuant to s 47(1) of the Supreme Court Act 1995 (Qld). 5.Leave to the parties to make submissions as to the costs of the proceedings in the Trial Division in accordance with paragraph 52 of Practice Direction No 2 of 2010.
CATCHWORDS:	CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNINGS AND LIKE MATTERS – where the appellant and respondent entered into a put and call option deed for the purchase of land – where the respondent, as the prospective purchaser, executed a warning statement, attached it to the deed and forwarded the documents to the appellant’s solicitors – where the appellant, as the prospective vendor, executed the deed and returned it to the respondent’s solicitor – where the appellant purported to exercise the put option – where the respondent contended that she was not bound by the deed because the appellant’s solicitors had not directed the attention of the respondent’s solicitor to the warning statement in their cover letter, as required by s 365(2)(c)(ii) of the Property Agents and Motor Dealers Act 2000 (Qld) – whether the respondent was bound by the deed and therefore in breach of the resulting contract of sale Property Agents and Motor Dealers Act 2000 (Qld), s 363, s 365, s 365(2)(c), s 365(3) Gallagher v Boylan [2011] QSC 94, overruled Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2008] QSC 261, distinguished
COUNSEL:	J McKenna SC for the appellant D Savage SC for the respondent
SOLICITORS:	Reichman Lawyers for the appellant Morgan Conley Lawyers for the respondent