SUPREME COURT OF QUEENSLAND
CITATION: Bulwer Pty Ltd v Ryan [2024] QSC 155 PARTIES: Bulwer Pty Ltd ACN 644 791 692
(Applicant)v Trent Andrew Ryan and Karen Lee Ryan
(Respondents)FILE NO/S: SCR No 617 of 2023 DIVISION: Trial Division PROCEEDING: Application ORIGINATING Filed 4 May 2023 APPLICATION: ORIGINATING Supreme Court of Queensland at Townsville COURT: DELIVERED ON: 25 July 2024 DELIVERED AT: Townsville HEARING DATE: 3 August 2023, (receipt of last submission 16 August 2023) JUDGE: North J ORDER:
1.
It is declared that on 14 December 2022, the applicant validly terminated a contract of sale dated 2 August 2022 between the applicant and the respondent in respect of the sale and purchase of two sub-sub-leases having registered dealing numbers 602816638 and 602816639, and 252,000 ordinary shares in the capital of Hamilton Island Development A Pty Ltd ACN 010 254 190 numbered 564,001 to 798,000 inclusive.
2.
The sum of $128,500 paid into court in this proceeding on 30 May 2023 be paid out to the applicant, together with any accretions.
3.
Within 14 days the parties are to exchange and file written submissions with respect to costs (not to exceed two pages).
4.
The costs are to be determined “on the papers” without appearance in person.
CATCHWORDS:
ESTOPPEL – WAIVER – BREACH OF CONTRACT – RIGHT TO TERMINATE – where Seller is the holder of the Shares and the registered proprietor of a Sub-sub-lease – where by virtue of the Articles of Association of the Development Company the holder of the shares is entitled to the Sub-sub-
lease and to occupy the apartment upon the conditions set out in the Articles of Association of the Development Company and in the Sub-sub-lease – where the contract of sale is subject to and conditional upon the consents being obtained from certain parties – where if by settlement the Seller has not been able to procure all the consents described in the contract not due to any default of the Seller the parties mutually agree that completion of this Contract shall be extended to that date which is seven (7) business days after the Seller provides written notice to the Buyer that the Consents have been obtained and settlement can proceed - where the consents have not been obtained within 90 days of the date of this contract then either party may elect to cancel this contract and any costs incurred in obtaining consents already obtained shall be borne by the Seller unless the Buyer has not co-operated or caused any delay in obtaining the consents – where parties have mutually agreed to multiple extensions to the sunset date – where the Seller has sought extension to sunset date into new year – where buyer has terminated the contract and sought reimbursement of consent costs paid and a refund of the deposit - whether the Buyer was entitled to terminate the contract or was in breach of contract – whether the Buyer waived its right to terminate – whether the…
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- AGLC
- Bulwer Pty Ltd v Ryan [2024] QSC 155
- Case
- [2024] QSC 155
- Decision Date
CaseChat Overview and Summary
The court needed to decide whether the applicant had validly terminated the contract on 14 December 2022. This required examining the terms of the contract, the communications between the parties, and the conduct of the parties’ legal representatives. The respondents contended that time had ceased to be of the essence and that there had been an agreement to extend the deadlines, which would negate the applicant’s right to terminate. However, the court found that there was no clear and unequivocal representation to this effect and that time had remained of the essence throughout the negotiations.
The court ultimately determined that the applicant had validly terminated the contract. The documentary evidence, including email correspondence and extensions granted for obtaining consents, consistently showed that time remained of the essence. The court found that there was no communication or conduct by the respondents that permitted a conclusion that time had ceased to be essential. Additionally, the court preferred the evidence of the respondents’ conveyancer over that of the applicant’s conveyancer, finding it more accurate and reflective of the conversations. Therefore, the applicant’s right to terminate the contract was upheld.
The court declared that the applicant validly terminated the contract on 14 December 2022, ordered the return of the sum paid into court, and directed the parties to exchange written submissions on costs within 14 days, to be determined on the papers without personal appearance.
Orders
Orders of the court
1.
It is declared that on 14 December 2022, the applicant validly terminated a contract of sale dated 2 August 2022 between the applicant and the respondent in respect of the sale and purchase of two sub-sub-leases having registered dealing numbers 602816638 and 602816639, and 252,000 ordinary shares in the capital of Hamilton Island Development A Pty Ltd ACN 010 254 190 numbered 564,001 to 798,000 inclusive.
2.
The sum of $128,500 paid into court in this proceeding on 30 May 2023 be paid out to the applicant, together with any accretions.
3.
Within 14 days the parties are to exchange and file written submissions with respect to costs (not to exceed two pages).
4.
The costs are to be determined “on the papers” without appearance in person.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Both Ms Kerr and Ms Gunders were experienced conveyancers. But Ms Gunders had considerable experience with conveying Hamilton Island properties (such as the two apartments in question). Ms Kerr did not have that experience. Ms Gunders explained to her some of the requirements of the contracts. Ms Gunders impressed me when she gave evidence under cross examination. She demonstrated intelligence, experience and was articulate thereby demonstrating an understanding of her client’s obligations as a buyer under the contract. Whereas at times I was left with the distinct impression that Ms Kerr was feeling her way concerning both conversations. It was apparent when giving evidence that Ms Kerr was experienced but I have a preference for Ms Gunder’s evidence over Ms Kerr’s where they diverged concerning both conversations. Another reason for my preference emerges from a comparison of the diary notes, exhibit 3 from Ms Gunders and exhibit 6 from Ms Kerr. Neither was suggested to be a comprehensive account of the conversation that day. No one suggested they were verbatim accounts, plainly they are not. But that of Ms Gunders more accurately reflected the conversation as I have found it. The sellers’ contentions and consideration In the closing written submissions the respondents’ counsel broadly speaking advanced four grounds in support of the contention that the applicant buyer was not entitled to terminate the contract on 14 December 2022; waiver, estoppel, thirdly that the buyer was not permitted to take advantage of his own wrong and lastly that, on the proper construction of the contract, the conditions for termination did not exist.[22] But before considering these issues in the context of the evidence and my findings it is necessary to consider whether time had ceased to be essential, an issue raised by the respondents in their Points of Claim. [22] See MFI 4. Clause 10 of the contract provided that time was of the essence.[23] On two occasions extensions were sought and granted for obtaining all the consents, Cl 13.1 referred to; from 31 October 2022 to 28 November 2022[24] and from 28 November 2022 to 9 December 2022.[25] On both occasions the sellers stipulated that time remained of the essence. That time was or remained essential was implicitly acknowledged by the seller’s solicitors in their email of 13 December 2022.[26] [23] See [9] above. [24] See Exhibit 1 p279 – 280. [25] See Exhibit 1 p351 & 352. [26] See Exhibit 1 p360. The documentary correspondence is consistent only with the circumstance being that time was and remained of the essence. The parties’ legal representatives conducted themselves on that basis, there was no communication or conduct that permits a conclusion that time ceased to be essential.[27] [27] See McPhee v Zarb & Ors [2002] QCA 530 per Williams JA at [20]-[21]. Nor was there a clear and unequivocal representation by Ms Gunders that her clients would agree to an extension beyond 9 December 2022 for the consents and would not insist upon the obtaining of consents as of 9 December 2022.[28] The findings I have made concerning the conversations on 22 August and 5 December 2022[29] do not permit that. There was no written communication to that effect. [28] Consider for example Legione v Hateley (1982) 152 CLR 406 per Mason and Deane JJ at [438] and [440]. [29] See [26] and [27] above. 30 See T1-67 l43 to 69 l10. 31 MFI 1, Mr Kelly for the applicant buyer, and MFI 4, Mr Evans for the respondent sellers.