Burmic P/L v Goldview P/L - [2002] QCA 479

SUPREME COURT OF QUEENSLAND

CITATION:

Burmic P/L v Goldview P/L [2002] QCA 479

PARTIES:

BURMIC PTY LTD ACN 054 868 549
(plaintiff/appellant)
v
GOLDVIEW PTY LTD ACN 009 760 838
(defendant/respondent)

FILE NO/S:

Appeal No 309 of 2002
DC No 325 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

8 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

22 October 2002

JUDGES:

McPherson JA, Cullinane and Homes JJ
Separate reasons for judgment of each member of the Court; each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

CONTRACTS - GENERAL PRINCIPLES - DEFENCES TO ACTION FOR BREACH - IMPOSSIBILITY OF PERFORMANCE - WHAT CAUSES FRUSTRATION - City Council began enforcing existing permitting laws for signs - whether enforcement could cause frustration

CONTRACTS - GENERAL PRINCIPLES - CONSTRUCTION IMPLIED TERMS - GENERALLY - whether a term not reflecting the common intention of parties can be implied - whether satisfies tests in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council

CONTRACTS - GENERAL PRINCIPLES - ILLEGAL CONTRACTS - contract to do something the statute forbids - neither party intends to comply with statute - whether contract enforceable

Buckland v Massey [1985] 1 Qd R 502, considered
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, applied

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, distinguished
Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215, followed
Sutton v Zullo Enterprises Pty Ltd [2000] 2 Qd R 196, mentioned
T P Rich Investments Pty Ltd v Calderon [1964] NSWR 709, followed
Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410, applied

Criminal Code (Qld), s 542
Gold Coast City Council Local Laws s 7, s 8, s 53, s 59

COUNSEL:

J S Douglas QC, with M J Campbell, for the plaintiff/appellant
A M Daubney, with D Morrow, for the defendant/respondent

SOLICITORS:

McDonald Brown Solicitors for the plaintiff/appellant
Wockner Partners for the defendant/respondent

McPHERSON JA: This is an appeal against a decision given in the District Court at Southport dismissing a claim by Burmic Pty Ltd, which is the plaintiff and in this Court the appellant, against the defendant respondent Goldview Pty Ltd for damages for breach of contract. In July 1999 Burmic was conducting a McDonalds restaurant under franchise at Burleigh Heads on the Gold Coast. Across the road at no 1916 Gold Coast Highway was a single storey shop owned by Goldview, which was an ideal site for “directional signage” advertising Burmic’s restaurant to motorists and others passing southbound along the Highway. Previously Burmic had from 1997 to 1999 hired space for advertising on the wall of a different nearby building owned by someone else, but that agreement was due to expire in late July or August 1999. It was then that Ms Julie Madin, an employee of Burmic, negotiated a contract with Goldview for an advertising…

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: [2002] QCA 479
Decision Date: 8 November 2002

CaseChat Overview and Summary

Burmic P/L appealed against a decision of the Queensland Land Court that invalidated a contract for the sale of land between Burmic and Goldview P/L. The contract contained a term that a sign would be erected on the property, but the Gold Coast City Council began enforcing existing permitting laws that prohibited the erection of signs without a permit. Burmic argued the contract was frustrated and therefore void. The dispute also involved whether a term could be implied into the contract and whether the contract was illegal and unenforceable. The court was required to determine whether the enforcement of the permitting laws frustrated the contract, whether a term could be implied into the contract that reflected the common intention of the parties, and whether the contract was illegal and unenforceable because it required the parties to do something the statute forbade.

The court found that the enforcement of the permitting laws by the City Council did not frustrate the contract because the law was not caused by a party to the contract and it was not the sole reason for the contract's failure. The court also found that a term could not be implied into the contract because it did not satisfy the tests in BP Refinery. The court further found that the contract was not illegal and unenforceable because neither party intended to comply with the statute and the contract did not require the parties to do something the statute forbade. The court held that the contract was valid and enforceable.

The appeal was dismissed with costs. The court found that the contract was not frustrated, a term could not be implied into the contract, and the contract was not illegal and unenforceable. The court therefore dismissed the appeal and ordered Burmic to pay Goldview's costs.

Orders

Orders of the court

Appeal dismissed with costs

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Burmic P/L v Goldview P/L [2002] QCA 479
PARTIES:	BURMIC PTY LTD ACN 054 868 549 (plaintiff/appellant) v GOLDVIEW PTY LTD ACN 009 760 838 (defendant/respondent)
FILE NO/S:	Appeal No 309 of 2002 DC No 325 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	8 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	22 October 2002
JUDGES:	McPherson JA, Cullinane and Homes JJ Separate reasons for judgment of each member of the Court; each concurring as to the order made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	CONTRACTS - GENERAL PRINCIPLES - DEFENCES TO ACTION FOR BREACH - IMPOSSIBILITY OF PERFORMANCE - WHAT CAUSES FRUSTRATION - City Council began enforcing existing permitting laws for signs - whether enforcement could cause frustration CONTRACTS - GENERAL PRINCIPLES - CONSTRUCTION IMPLIED TERMS - GENERALLY - whether a term not reflecting the common intention of parties can be implied - whether satisfies tests in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council CONTRACTS - GENERAL PRINCIPLES - ILLEGAL CONTRACTS - contract to do something the statute forbids - neither party intends to comply with statute - whether contract enforceable Buckland v Massey [1985] 1 Qd R 502, considered BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, applied Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, distinguished Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215, followed Sutton v Zullo Enterprises Pty Ltd [2000] 2 Qd R 196, mentioned T P Rich Investments Pty Ltd v Calderon [1964] NSWR 709, followed Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410, applied Criminal Code (Qld), s 542 Gold Coast City Council Local Laws s 7, s 8, s 53, s 59
COUNSEL:	J S Douglas QC, with M J Campbell, for the plaintiff/appellant A M Daubney, with D Morrow, for the defendant/respondent
SOLICITORS:	McDonald Brown Solicitors for the plaintiff/appellant Wockner Partners for the defendant/respondent