Brown v Ogle - [2006] QSC 74

SUPREME COURT OF QUEENSLAND

CITATION:

Brown v Ogle [2006] QSC 074

PARTIES:

WARREN THOMAS BROWN
(plaintiff)
v
DONALD GORDON OGLE
(defendant)

FILE NO/S:

BS10384 of 1999

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

12 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

30-31 August, 1 September and 25 October 2005

JUDGE:

Mullins J

ORDER:

Adjourn the proceeding to a date to be fixed for submissions on the terms of orders to be made

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – contract between two experienced businessmen prepared without assistance of lawyers – where words and figures added to end of last paragraph in handwriting before contract was signed – whether the contract was able to be given a more sensible construction which reflected the facts known mutually to the parties if the handwritten words and figures were treated as being added to end of the second last paragraph of the contract instead of the last paragraph – where payment of amount under the contract by owner of land to former business partner was conditional on sale of land for not less than a specified price “with the normal Pine Rivers Shire Council subdivisional approval” – whether in the circumstances the reference to “normal” subdivisional approval where land was zoned rural should be construed as a reference to a subdivision without obtaining any approval for a material change of use of the land – the words “with the normal Pine Rivers Shire Council subdivisional approval” construed as imposing an obligation on owner to take action towards obtaining subdivisional approval to enable sale of the land for the price specified in the condition – whether condition was satisfied if land sold for specified price before any subdivisional approval had been obtained – whether condition was satisfied if sale of land was by mortgagee exercising power of sale and not the owner - contract construed to promote its commercial purpose

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Corumo Holdings Pty Ltd v C Itoh Ltd (1991) 24 NSWLR 370
Gould v Vaggelas (1985) 157 CLR 215
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1967) 118 CLR 429

COUNSEL:

R M Derrington SC and D de Jersey for the plaintiff
P A Looney for the defendant

SOLICITORS:

Jones King Lawyers for the plaintiff
Bennett & Philp for the defendant

MULLINS J: Between 1995 and 1998 the plaintiff and the defendant had business dealings in respect of land of which the plaintiff was the registered owner described as Lot 3 on RP 208443 in the County of Stanley Parish of Parker containing 440.768 hectares (“the Mt O’Reilly property”) and which was zoned rural under the town planning scheme for the Pine Rivers Shire.

On or about 5 August 1995 the parties signed a document entitled “agreement” relating to the proposed dealings in respect of the Mt O’Reilly…

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 Brown v Ogle

Details

AGLC: Brown v Ogle [2006] QSC 74
Case: [2006] QSC 74
Decision Date: 12 April 2006

CaseChat Overview and Summary

The case of Brown v Ogle involved a dispute between two experienced businessmen, Brown and Ogle, over the interpretation of a contract they had entered into. The contract was prepared without the assistance of legal professionals, and included handwritten words and figures that were added before it was signed. The primary issue before the court was whether the contract could be construed in a way that reflected the facts known to both parties, if the handwritten words and figures were treated as being added to the end of the second last paragraph of the contract rather than the last paragraph.

The court was also required to determine whether the condition in the contract, which provided for payment by the owner of the land to the former business partner upon the sale of the land for a specified price "with the normal Pine Rivers Shire Council subdivisional approval", should be construed as imposing an obligation on the owner to take action towards obtaining subdivisional approval to enable the sale of the land for the specified price. The court also needed to decide whether the condition was satisfied if the land was sold for the specified price before any subdivisional approval had been obtained, and whether the condition was satisfied if the sale of the land was by the mortgagee exercising its power of sale and not the owner.

The court found that the contract should be construed to promote its commercial purpose and that the condition in the contract should be interpreted as imposing an obligation on the owner to take action towards obtaining subdivisional approval to enable the sale of the land for the specified price. The court also found that the condition was not satisfied if the land was sold for the specified price before any subdivisional approval had been obtained, and that the condition was not satisfied if the sale of the land was by the mortgagee exercising its power of sale and not the owner. The court adjourned the proceeding to a date to be fixed for submissions on the terms of orders to be made.

Orders

Orders of the court

Adjourn the proceeding to a date to be fixed for submissions on the terms of orders to be made

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

Full text does not contain this section.

CITATION:	Brown v Ogle [2006] QSC 074
PARTIES:	WARREN THOMAS BROWN (plaintiff) v DONALD GORDON OGLE (defendant)
FILE NO/S:	BS10384 of 1999
DIVISION:	Trial Division
PROCEEDING:	Trial
DELIVERED ON:	12 April 2006
DELIVERED AT:	Brisbane
HEARING DATE:	30-31 August, 1 September and 25 October 2005
JUDGE:	Mullins J
ORDER:	Adjourn the proceeding to a date to be fixed for submissions on the terms of orders to be made