Bradshaw v Henderson - [2009] QDC 14

DISTRICT COURT OF QUEENSLAND

CITATION:

Bradshaw v Henderson & Anor [2009] QDC 14

PARTIES:

GARY EDWARD BRADSHAW

Plaintiff

V

CYNTHIA HENDERSON

First Defendant

And

WALTER KIM WINSTANLEY

Second Defendant

FILE NO/S:

2005 of 2008

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court of Queensland, at Brisbane

DELIVERED ON:

5 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

24, 25 September 2008; written submissions received up to and including 6 November 2008

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Judgment for the plaintiff against the second defendant for $14000 for claim and $6800 for interest

CATCHWORDS:

CONTRACT – BREACH OF CONTRACT – REPUDIATION – WRONGFUL RECISSION – whether specific performance should be granted – discretion – damages

Property Law Act 1974, ss 10, 11 and 59

Cases considered:
ASA Constructions Pty Ltd v Iwanov & Ors (1975) 1 NSWLR 512
Dinan v Harper [1922] VLR 49
Dowsett v Reid (1912) 15 CLR 695
Hawkins v Price [1947] Ch 645
Lamshed v Lamshed (1963) 109 CLR 440
Masters v Cameron (1954) 91 CLR 353
Moffatt Property Development Group Pty Ltd v Hebron Park Pty Ltd [2008] QSC 177
Patel v Ali (1984) 1 Ch 283
The Railway Commissioners for New South Wales v Orton & Knight (1922) 30 CLR 422
Wroth v Tyler (1974) Ch 30

COUNSEL:

D Kelly for Plaintiff
C K Copley for First Defendant
Second Defendant appeared on own behalf

SOLICITORS:

Biggs Fitzgerald Pike
Caboolture Legal Centre
Second Defendant self-represented

Berths for boats at marinas are valuable commodities, and there is a market for them. This action concerns a failed attempt by Mr Bradshaw to purchase one owned by Mr Winstanley in 2003 at Scarborough Marina. Responding to an advertisement he saw at the marina, Mr Bradshaw contacted Ms Henderson (whose phone number appeared in the advertisement, and who believed herself to be authorised by Mr Winstanley to act as his agent) and after some negotiations with her they agreed on a purchase price of $30,000 and he payed her a deposit of $1000.

Mr Bradshaw never met or spoke to Mr Winstanley and his only subsequent dealings about the purchase were with Ms Henderson. Despite those dealings the matter never really progressed and in April 2003 Ms Henderson wrote Mr Bradshaw a letter returning the deposit, and saying the sale to him would not proceed.

Mr Bradshaw says that at the time he still had an enforceable contract with Mr Winstanley (or Ms Henderson) and seeks an order that Mr Winstanley transfer the berth to him, or that one of them pay him damages.

Ms Henderson and Mr Winstanley lived together for many years as de facto partners but separated in early 2003. She says that in the course of dividing their joint property and dealing with some pressing financial problems they had at the time, she was authorised by Mr Winstanley to advertise the berth for sale and act as his agent. Acting on that authority, she says, she put up the advertisement at the Marina, and dealt with…

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 Bradshaw v Henderson

Details

AGLC: Bradshaw v Henderson [2009] QDC 14
Case: [2009] QDC 14
Decision Date: 5 February 2009

CaseChat Overview and Summary

In the case of Bradshaw v Henderson, the plaintiff, Bradshaw, brought an action against the second defendant, Henderson, for breach of contract. Bradshaw sought specific performance of a contract for the sale of property, and alternatively, damages for wrongful rescission. The dispute was heard and determined by the Supreme Court of Queensland. The first defendant, who was also named in the suit, was not the subject of any final orders or determinations by the court.

The primary legal issues before the court were whether the second defendant had wrongfully rescinded the contract, and if so, whether the plaintiff was entitled to specific performance or damages. The court had to consider the nature and extent of the breach, the circumstances leading to the rescission, and the appropriate remedy available to the plaintiff under the circumstances. The court also had to assess the discretion available to it in granting specific performance or awarding damages.

The court found that the second defendant had indeed wrongfully rescinded the contract. In determining the appropriate remedy, the court considered the nature of the property, the intentions of the parties, and the losses incurred by the plaintiff. The court concluded that, given the unique circumstances of the case, specific performance was not a suitable remedy as it would not adequately compensate the plaintiff for the loss suffered. Instead, the court exercised its discretion to award the plaintiff damages for the wrongful rescission. The court determined that the plaintiff was entitled to $14000 for the claim and $6800 for interest, totalling $20800.

Orders

Orders of the court

Judgment for the plaintiff against the second defendant for $14000 for claim and $6800 for interest

Background

Background to the litigation

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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:	Bradshaw v Henderson & Anor [2009] QDC 14
PARTIES:	GARY EDWARD BRADSHAW Plaintiff V CYNTHIA HENDERSON First Defendant And WALTER KIM WINSTANLEY Second Defendant
FILE NO/S:	2005 of 2008
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	District Court of Queensland, at Brisbane
DELIVERED ON:	5 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	24, 25 September 2008; written submissions received up to and including 6 November 2008
JUDGE:	Alan Wilson SC, DCJ
ORDER:	Judgment for the plaintiff against the second defendant for $14000 for claim and $6800 for interest
CATCHWORDS:	CONTRACT – BREACH OF CONTRACT – REPUDIATION – WRONGFUL RECISSION – whether specific performance should be granted – discretion – damages Property Law Act 1974, ss 10, 11 and 59 Cases considered: ASA Constructions Pty Ltd v Iwanov & Ors (1975) 1 NSWLR 512 Dinan v Harper [1922] VLR 49 Dowsett v Reid (1912) 15 CLR 695 Hawkins v Price [1947] Ch 645 Lamshed v Lamshed (1963) 109 CLR 440 Masters v Cameron (1954) 91 CLR 353 Moffatt Property Development Group Pty Ltd v Hebron Park Pty Ltd [2008] QSC 177 Patel v Ali (1984) 1 Ch 283 The Railway Commissioners for New South Wales v Orton & Knight (1922) 30 CLR 422 Wroth v Tyler (1974) Ch 30
COUNSEL:	D Kelly for Plaintiff C K Copley for First Defendant Second Defendant appeared on own behalf
SOLICITORS:	Biggs Fitzgerald Pike Caboolture Legal Centre Second Defendant self-represented