Butchart v Sinnamon

Case [2021] QSC 317

SUPREME COURT OF QUEENSLAND

CITATION:

Butchart & Anor v Sinnamon & Ors [2021] QSC 317

PARTIES:

DAVID ANTHONY BUTCHART AND MONIQUE MARLENE BUTCHART

(applicants)

v
DAVID EDWARD SINNAMON

(first respondent)
and
KELLY MAREE BRODERICK AND LISA MICHELLE REID
(second respondents)

FILE NO:

9503/21

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

16 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2021

JUDGE:

Dalton J

ORDERS:

1.   Application dismissed.

2.   Caveat No 721012227 lodged by the Applicants be removed from the title of Lot 30 on Survey Plan 103989 in Title Reference number 502 068 47.

3.   The injunction granted by Jackson J on 25 August 2021 is discharged.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES
– CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS
CONTRACTS AND OTHER MATTERS – drafting and content of first right of refusal – where the applicants purchased land from the first respondent – where the contract of sale gave the applicants a first right of refusal to purchase a second lot – where the first respondent signed a contract to sell the second lot to the second respondents – where the first right of refusal clause did not define the rights the applicants were to gain – where the clause did not provide any mechanism or procedure to be followed in according the applicants their rights – where the clause required the first respondent to give the applicants a reasonable opportunity to buy or refuse to buy the land at a price the first respondent genuinely wanted at a time before he contracted with anyone else – where the applicants had months’ notice of the first respondent’s intention to sell and the time at which he intended to sell – where the first respondent acted sufficiently to comply with the requirements of the first right of refusal – where the clause did not require the first respondent to refrain from contracting with the second respondents when he formed a mind to do so until he had again offered the land to the applicants for the same price it was offered to the second respondents

EVIDENCE – ADDUCING EVIDENCE – WITNESSES – GIVING EVIDENCE – CROSS-EXAMINATION – GENERALLY – the rule in Browne v Dunn – where affidavits were exchanged prior to the hearing – where the affidavit evidence of various witnesses was opposed in substance – where there was a failure to explore contentious issues during the hearing leading to factual deficiencies – where counsel did not cross examine witnesses at length

Browne v Dunn (1893) 6 R 67 (HL), followed
Reid v Kerr (1974) 9 SASR 367, cited
Woodroffe v Box (1954) 92 CLR 245; [1954] HCA 22, followed
Mackay & Anor v Wilson & Anor (1947) 47 SR (NSW) 315, cited
THL Robina Pty Ltd v The Glades Golf Club Pty Ltd & Anor [2005] 2 Qd R 186; [2004] QSC 461, considered
Jonns & Anor v Tan & Ors [1999] NSWSC 648,…

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AGLC
Butchart v Sinnamon [2021] QSC 317
Case
[2021] QSC 317
Decision Date

CaseChat Overview and Summary

The case of Butchart v Sinnamon involved a dispute over a first right of refusal clause in a contract of sale between the applicants and the first respondent regarding two lots of land. The applicants, who had purchased one lot from the first respondent, sought to enforce a first right of refusal clause in relation to a second lot, which the first respondent had subsequently sold to the second respondents. The applicants argued that the first respondent had failed to offer them the opportunity to purchase the second lot before selling it to the second respondents, despite having months' notice of the first respondent's intention to sell. The legal issues before the court included the interpretation of the first right of refusal clause, the adequacy of the first respondent's actions in offering the land to the applicants, and the failure of the applicants to cross-examine witnesses effectively during the hearing.

The court examined the drafting and content of the first right of refusal clause, which did not define the rights of the applicants or provide a mechanism or procedure for exercising those rights. The clause required the first respondent to give the applicants a reasonable opportunity to buy the land at a price the first respondent genuinely wanted before contracting with anyone else. The court found that the first respondent had acted sufficiently to comply with the requirements of the clause by giving the applicants months' notice of his intention to sell and the time at which he intended to sell. The court also noted that the clause did not require the first respondent to refrain from contracting with the second respondents until he had again offered the land to the applicants for the same price. Furthermore, the court observed that the applicants had failed to explore contentious issues during the hearing, leading to factual deficiencies. The court also noted that counsel for the applicants had not cross-examined witnesses at length, resulting in a failure to fully explore the evidence.

In light of the above, the court dismissed the application and ordered that the caveat lodged by the applicants be removed from the title of the second lot. The court also discharged the injunction granted by another judge in relation to the same property. The applicants' argument that the first respondent had failed to offer them the opportunity to purchase the second lot before selling it to the second respondents was rejected, and the first respondent's actions were found to be sufficient to comply with the requirements of the first right of refusal clause. The failure of the applicants to cross-examine witnesses effectively during the hearing further undermined their case.

Orders

Orders of the court

1. Application dismissed.

2. Caveat No 721012227 lodged by the Applicants be removed from the title of Lot 30 on Survey Plan 103989 in Title Reference number 502 068 47.

3. The injunction granted by Jackson J on 25 August 2021 is discharged.

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

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