Braidotti & Anor v Queensland City Properties Limited - [1990] HCATrans 275

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B30 of 1990
B e t w e e n -
AUGUSTO BRAIDOTTI and
MARY VILMA BRAIDOTTI

Appellants

and
QUEENSLAND CITY PROPERTIES
LIMITED

Respondent

MASON CJ
BRENNAN J
DEANE J
DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 NOVEMBER 1990, AT 10.19 AM

Braidotti(2)

14/11/90

MR G.L.DAVIES, QC:

May it please the Court, I appear with

my learned friend, MR B.J. CLARKE, for the
appellant. (instructed by Bain Gasteen Smith)

MR D.F. JACKSON, QC:

May it please the Court, I appear with

my learned friend, MR T.W. QUINN for the
respondent. (instructed by Henderson Trout)

MASON CJ: Yes, Mr Davies.

MR DAVIES:

Your Honours, I think, have our outline of

submissions.

MASON CJ:	We do.
MR DAVIES:	Do Your Honours have copies of the relevant

sections to the Act? We do have copies if Your
Honour do not.

MASON CJ: Yes, we seem to have copies, Mr Davies.

MR DAVIES:

Your Honours would have seen that the Full Court

dismissed an appeal by the appellants from a
judgment of Mr Justice McPherson, in which he
declared that the contract between the parties had
been rescinded by the respondent on 10 August,
1989. The judgments appear at pages 83 and 84 and

100 and 101 of the appeal book. I will not take
Your Honours to them. There were two steps in
His Honour's reasoning at first instance, which was

really endorsed by the Full Court. The first was
that the contract between the parties was an
instalment contract within the meaning of
section 71 of the Property Law Act, because of
clause 42 of the contract, and I will take
Your Honours to that a little later, but in summary
it provided that the purchaser agreed to pay the
vendors the sum of 80 dollars a week to maintain
the property for farming purposes until the
contract came to an end, the vendors being farmers,
the purchasers being developers and that provision
for maintenance for farming purposes being of no

value to the purchasers.
That appears in Mr Justice McPherson's
judgment at page 76 point 20, and from about

page 76 line 34 to page 77 line 37. I do not think
I need take Your Honours to it in detail but that
is the part of His Honour's judgment in which
His Honour deals with that as being the first question.
The second step in his reasoning was that the

vendor appellants had repudiated the contract thus
entitling the purchaser to rescind by purporting to
give a notice of rescission without first giving a
notice of intention in accordance with section 72

Braidotti(2)

14/11/90

of the Act. His Honour dealt with that as the
question at pages 77 line 37 to 78 line 20.
In reaching that conclusion, Your Honours, His Honour assumed in the appellant's favour a fact
which would…

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.

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Details

Case: [1990] HCATrans 275
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the High Court of Australia from a decision of the Full Court of the Supreme Court of Queensland. The appellants, Augusto Braidotti and another, appealed a judgment that declared their contract with the respondent, Queensland City Properties Limited, had been rescinded by the respondent. The primary judge, McPherson J, had found that the contract was an instalment contract under section 71 of the Property Law Act, and that the vendor appellants had repudiated the contract by purporting to rescind it without first providing notice of intention as required by section 72 of the Act.

The legal issues before the High Court were whether the contract was an instalment contract within the meaning of section 71 of the Property Law Act, and whether the vendor appellants' actions constituted a repudiation of the contract, thereby entitling the respondent to rescind. The primary judge had assumed, in favour of the appellants, that the respondent had defaulted on its completion obligations by 26 July 1989, a fact necessary for the application of section 72. The decision at first instance, affirmed by the Full Court, led to the respondent being entitled to damages yet to be assessed.

The court was required to consider clause 42 of the contract, which stipulated that the purchaser would pay the vendors $80 per week to maintain the property for farming purposes until the contract ended. The vendors were farmers, and the purchasers were developers, and this maintenance provision was considered to be of no value to the purchasers. The primary judge's reasoning, endorsed by the Full Court, hinged on this clause establishing the contract as an instalment contract, and the subsequent purported rescission by the vendors without the requisite notice under section 72 constituting a repudiation.

Orders