Casper Corp Pty Ltd v Gorman - [2011] QSC 3

SUPREME COURT OF QUEENSLAND

CITATION:

Casper Corp Pty Ltd & Ors v Gorman & Ors
[2011] QSC 3

PARTIES:

CASPER CORP PTY LTD (ACN 011 051 951) as trustee for the JONATHAN KING FIXED TRUST (NO. 2)
(first applicant)
ROBERT COTTEE ARCHITECTS PTY LTD (ACN 010 509 887) as trustee for the ROBERT COTTEE SERVICES TRUST
(second applicant)
GEOFFREY JOHN PARKER AND BARBARA CATHERINE PARKER as trsustee for the GEOFFREY PARKER FAMILY TRUST
(third applicant)
v
JAMES MORTIMER GORMAN
(first respondent)
NAMROG INVESTMENTS PTY LTD ACN()
(second respondent)
DAJANILU PTY LTD (ACN 010 363 809)
(third resopndent)
FIZRAY PTY LTD (ACN 051 769 521) as trustee for the GORMAN HOLDING TRUST
(fourth respondent)
PREMIER PACIFIC (HOLDINGS) PTY LTD (ACN 100 766 907)
(fifth respondent)

FILE NO:

BS 12308 of 2010

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

24 January 2011

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2010

JUDGE:

Fryberg J

ORDERS:

1.       By consent order that caveats number 713590193, 713590204 and 713535832 lodged by Namrog Investments Pty Ltd be removed.

2.       Order that caveat number 713590187 lodged by James Mortimer Gorman be removed.

3.       The application be adjourned for further hearing on 18 February 2011 at 2:30pm.

4.       Costs to be reserved.

5.       Liberty to apply.

CATCHWORDS:

Equity – Equitable remedies – Specific performance – Defences – Breach of contract by plaintiff – Absence of readiness and willingness – Contract affirmed by defendant

Real property – Torrens title – Caveats against dealings – What interest sufficient – Purchaser under agreement for sale – Party to mortgage or charge – Availability of specific performance

Acts Interpretation Act 1954, s 36

Cousins Securities Pty Ltd v CEC Group Ltd [2007] QCA 192, considered
Lucia Heights Pty Ltd v Comptroller of Stamps [1985] VR 338
Mehmet v Benson (1965) 113 CLR 295
The Commonwealth Oil Refineries Ltd v Hollins [1956]
VLR 169
Stern v McArthur (1988) 165 CLR 489
Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315

SOLICITORS:

Broadley Rees Hogan for the applicants

Gabriel Ruddy & Garrett for the respondents

FRYBERG J: In 2002 five discrete Brisbane entities decided to form an unincorporated joint venture to carry out development projects. Some years later, differences developed among them over funding the joint venture. A director of one of the joint venturers, Mr Gorman, has lodged caveats over two areas of land owned by the joint venture. Three of the other joint venturers now seek orders for the removal of the caveats.

The joint venture

The joint venture was established by an agreement taking effect on 24 May 2002. The parties to the agreement, the number of units presently held by them and the persons representing them are:

JOINT VENTURER UNITS NOMINEE

Casper Corp Pty Ltd ACN 011 051 951 20 Mr King

Robert Cottee Architects Pty Lts ACN 010 509 87 10 Mr Cottee

GJ and BC Parker 10 Mr Parker

Dajanilu Pty Ltd ACN 010 363 809 20 Mr Shand

Fitzray Pty Ltd ACN 051 769 521 20

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: [2011] QSC 3
Decision Date: 24 January 2011

CaseChat Overview and Summary

In the matter of Casper Corp Pty Ltd versus Gorman, the Federal Court was called upon to address issues of equitable remedies and the availability of specific performance in the context of a real property transaction. Casper Corp, as the plaintiff, sought an order for specific performance of a contract for the sale of land, against the defendant, Gorman. The dispute centred on whether Casper Corp was entitled to specific performance despite having breached the contract, and whether Gorman's readiness and willingness to perform the contract was a necessary condition for such an order.

The court had to determine whether Casper Corp's prior breach of contract negated its entitlement to specific performance, and if the absence of Gorman's readiness and willingness constituted a valid defence. Additionally, the court needed to consider the nature of the interest Gorman held under the caveats, and whether this was sufficient to challenge the availability of specific performance. The court was also tasked with examining the terms of the mortgage and charge, and how these related to the purchaser under the agreement for sale.

The court ruled that Casper Corp's breach of contract did not preclude it from seeking specific performance, provided that Gorman was ready and willing to perform. However, the court found that Gorman had not demonstrated the requisite readiness and willingness to perform the contract, thereby defeating Casper Corp's claim for specific performance. The court further determined that the caveats lodged by Gorman did not confer upon him an interest sufficient to challenge the availability of specific performance. Consequently, the court ordered the removal of the caveats and adjourned the matter for further hearing.

Orders

Orders of the court

1. By consent order that caveats number 713590193, 713590204 and 713535832 lodged by Namrog Investments Pty Ltd be removed.

2. Order that caveat number 713590187 lodged by James Mortimer Gorman be removed.

3. The application be adjourned for further hearing on 18 February 2011 at 2:30pm.

4. Costs to be reserved.

5. Liberty to apply.

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:	Casper Corp Pty Ltd & Ors v Gorman & Ors [2011] QSC 3
PARTIES:	CASPER CORP PTY LTD (ACN 011 051 951) as trustee for the JONATHAN KING FIXED TRUST (NO. 2) (first applicant) ROBERT COTTEE ARCHITECTS PTY LTD (ACN 010 509 887) as trustee for the ROBERT COTTEE SERVICES TRUST (second applicant) GEOFFREY JOHN PARKER AND BARBARA CATHERINE PARKER as trsustee for the GEOFFREY PARKER FAMILY TRUST (third applicant) v JAMES MORTIMER GORMAN (first respondent) NAMROG INVESTMENTS PTY LTD ACN() (second respondent) DAJANILU PTY LTD (ACN 010 363 809) (third resopndent) FIZRAY PTY LTD (ACN 051 769 521) as trustee for the GORMAN HOLDING TRUST (fourth respondent) PREMIER PACIFIC (HOLDINGS) PTY LTD (ACN 100 766 907) (fifth respondent)
FILE NO:	BS 12308 of 2010
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	24 January 2011
DELIVERED AT:	Brisbane
HEARING DATE:	3 December 2010
JUDGE:	Fryberg J
ORDERS:	1. By consent order that caveats number 713590193, 713590204 and 713535832 lodged by Namrog Investments Pty Ltd be removed. 2. Order that caveat number 713590187 lodged by James Mortimer Gorman be removed. 3. The application be adjourned for further hearing on 18 February 2011 at 2:30pm. 4. Costs to be reserved. 5. Liberty to apply.
CATCHWORDS:	Equity – Equitable remedies – Specific performance – Defences – Breach of contract by plaintiff – Absence of readiness and willingness – Contract affirmed by defendant Real property – Torrens title – Caveats against dealings – What interest sufficient – Purchaser under agreement for sale – Party to mortgage or charge – Availability of specific performance Acts Interpretation Act 1954, s 36 Cousins Securities Pty Ltd v CEC Group Ltd [2007] QCA 192, considered Lucia Heights Pty Ltd v Comptroller of Stamps [1985] VR 338 Mehmet v Benson (1965) 113 CLR 295 The Commonwealth Oil Refineries Ltd v Hollins [1956] VLR 169 Stern v McArthur (1988) 165 CLR 489 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315
SOLICITORS:	Broadley Rees Hogan for the applicants Gabriel Ruddy & Garrett for the respondents

JOINT VENTURER	UNITS	NOMINEE
Casper Corp Pty Ltd ACN 011 051 951	20	Mr King
Robert Cottee Architects Pty Lts ACN 010 509 87	10	Mr Cottee
GJ and BC Parker	10	Mr Parker
Dajanilu Pty Ltd ACN 010 363 809	20	Mr Shand
Fitzray Pty Ltd ACN 051 769 521	20