Brisbane City Council v Wang

DISTRICT COURT OF QUEENSLAND

CITATION:

Harris & Maher  v Prigg [2008] QDC 236

PARTIES:

MICHAEL RICHMOND HARRIS and

RODNEY JOSEPH MAHER  (Plaintiffs)

AND

GARRY LESLIE PRIGG

  (Defendant)

FILE NOS:

D100/08

DIVISION:

District Court of Queensland, Maroochydore

PROCEEDING:

Civil hearing

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

31.10.08

DELIVERED AT:

Maroochydore

HEARING DATE:

24.10.2008

JUDGE:

Judge J.M. Robertson

ORDER:

The plaintiffs claim is dismissed and I give judgment for the defendant on his counterclaim

CATCHWORDS:

Contract for sale of Lot in Community Title Scheme
Breach of Contract: whether purchaser was entitled to terminate prior to completion because of encroachment of part of common property onto adjoining property, whether encroachment was “material”, whether transfer of Lot includes transfer of Lot owners interest in common property
Construction and Interpretation: Proper construction of s.35(3) of the Body Corporate and Community Management Act 1997.

Cases Considered
Coghill v Le Borgue [1983] 2 Qd R 552
Menitti & Ors v Winn & Anor [2008] QCA 66
Shadbolt v Wise [2002] QSC 348
Shadbolt & Anor v Wise & Anor [2003] QCA 241

Legislation

Body Corporate and Community Management Act 1997 s.10, s.30, s.35, s.35(3), s.31, s.36, s.206, s.206(2), s.206(2)(6), s.207, s.209(1), s.223(2), s.224, s.224(2)(b), s224(2)(b)(i), Chapter 5.
Land Title Act 1994 s.182(1)
Property Agents and Motor Dealers Act 2000
Property Law Act 1974

COUNSEL:

Ms. Anderson for the Plaintiffs
Mr. Nevison for the Defendant

SOLICITORS:

Oric Legal for the Plaintiffs
Ferguson Cannon Lawyers for the Defendant

Introduction

1. On 23.3.07, Mr. Prigg (the defendant) sold his unit in the Whitsunday Vista Resort at Airlie Beach to Mr. Harris and Mr. Maher (the plaintiffs) for $415,000. The property sold is described in the contract as Lot 18 on SP121164…title reference 50277604. A deposit of $40,000 was paid and it is common ground that the contract was to be settled on 26.4.07. On that day the plaintiffs solicitor purported to terminate the contact pursuant to Clause 7.5 of the standard terms and conditions of the contract on the ground that “there (was) an encroachment by structures from  the Lot onto an adjoining property which is material”, and demanded return of the deposit. The defendants solicitors had (prior to receipt of this letter) on 26.4.07 notified the plaintiffs solicitors that their client was ready, willing and able to complete at 4:00p.m. that day at a bank in Maroochydore. On 29 January 2008, (after these proceedings had been commenced), the defendants solicitors accepted what they describe as the “wrongful repudiation of the contract”, and elected to accept the termination and forfeit the deposit. The plaintiff now claims the return of the deposit, and the defendant in turn counterclaims for the deposit monies which have been paid into court.

The Dispute

1. The dispute focuses on Clause 7.5 of the contract which is in these terms:

“7.5 Survey and Mistake

(1)The buyer may survey the Lot.

(2)If there is:

a.    an error in the boundaries or an area of the Lot;

b.    an encroachment by the structures onto or from the Lot; or