Clancy v Carlson - [2021] QDC 33

DISTRICT COURT OF QUEENSLAND

CITATION:

Clancy v Carlson [2021] QDC 33

PARTIES:

JOHN EDWARD CLANCY

(plaintiff)

v

TESSA JANE SEDDON CARLSON

(defendant)

FILE NO:

D306/2019

DIVISION:

Civil

PROCEEDING:

Civil Trial

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

15 July 2021

DELIVERED AT:

Southport

HEARING DATE:

3 February 2021

JUDGE:

Dann DCJ

ORDERS:

1.    Judgment for the plaintiff against the defendant in the proceeding.

2.    The defendant pay to the plaintiff the sum of $137,800.63.

3.    The defendant pay to the plaintiff interest at the rate of 9.3% per annum pursuant to clause 9.9 of the Contract on the judgment of $137,800.63.

4.    The defendant pay the plaintiff’s legal costs of the proceeding on an indemnity basis pursuant to clause 9.7 of the Contract.

CATCHWORDS:

CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – VENDOR’S REMEDIES – DAMAGES – where the parties entered into contract for the sale of a property – where the defendant failed to pay the balance of the purchase price on or before settlement date or at all and was therefore in breach of an essential term of the contract – where the court was satisfied that the defendant was aware of the trial date and it was appropriate for the plaintiff to seek to establish its claim pursuant to r 476 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the market value of the property was $950,000.00 at the date of settlement and date of the breach – whether the plaintiff suffered damage between the contract price and the market value as at the date of settlement – whether the plaintiff incurred legal costs and has suffered loss and damage which he can recover from the defendant as a result of the difference in purchase price and market value – whether the plaintiff can claim the real estate agent commission fees of $25,000, retained by the agent, as loss and damage suffered – where the plaintiff claims pre-judgment interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld) – whether the appropriate rate for pre-judgment interest is the rate prescribed under the Supreme Court Practice Direction No 7 of 2013 – whether the plaintiff is entitled to unpaid license fees, rates, water and body corporate fees – whether the plaintiff can claim for indemnity from the defendant for expenses or damages incurred by the plaintiff as a result of the defendant’s possession of the property – whether the plaintiff can claim interest on the license fees, bond cleaning, repairs, rates, water charges and body corporate fees pursuant to clause 9.9 of the contract – whether an order for the payment of the legal costs of the proceeding on an indemnity basis can be made against the defendant pursuant to clause 9.7 of the contract – whether the plaintiff can claim interest on the total amount of the judgment at the rate of 9.3% per annum pursuant to clause 9.9 of the contract.

Uniform Civil Procedure Rules 1999 (Qld), r 166(1),…

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 Clancy v Carlson

Details

AGLC: Clancy v Carlson [2021] QDC 33
Case: [2021] QDC 33
Decision Date: 15 July 2021

CaseChat Overview and Summary

In the case of Clancy v Carlson, the plaintiff, Clancy, sought damages and other remedies from the defendant, Carlson, for breach of a contract for the sale of property. The dispute centred on whether the defendant had failed to pay the balance of the purchase price on the settlement date, thus breaching an essential term of the contract. The court had to decide on various legal issues, including the market value of the property, the extent of the plaintiff's damages, the recoverability of real estate agent commission fees, pre-judgment interest, unpaid fees, indemnity for expenses, and interest on various charges. The plaintiff argued that the defendant's failure to pay the balance constituted a breach of contract and sought damages for the difference between the contract price and the market value, legal costs, and other expenses.

The court concluded that the defendant's failure to pay the balance of the purchase price constituted a breach of an essential term of the contract, entitling the plaintiff to affirm or terminate the contract. The court found that the market value of the property was $950,000.00 at the date of settlement, and the plaintiff suffered damages as a result of the difference between the contract price and the market value. The plaintiff was also entitled to recover legal costs on an indemnity basis and interest on the judgment amount. However, the court held that the plaintiff could not recover the real estate agent commission fees, pre-judgment interest, unpaid fees, or interest on various charges. The court ordered the defendant to pay the plaintiff the sum of $137,800.63, interest at the rate of 9.3% per annum, and the plaintiff's legal costs of the proceeding on an indemnity basis.

The court's decision was based on a thorough review of the pleadings, evidence, and the terms of the contract. The court found that the plaintiff had established his case on the balance of probabilities, and the defendant had failed to rebut the plaintiff's claims. The court also considered the relevant legislation and case law in reaching its decision. The final orders of the court reflected the court's findings and conclusions on the issues before it.

Orders

Orders of the court

1. Judgment for the plaintiff against the defendant in the proceeding.

2. The defendant pay to the plaintiff the sum of $137,800.63.

3. The defendant pay to the plaintiff interest at the rate of 9.3% per annum pursuant to clause 9.9 of the Contract on the judgment of $137,800.63.

4. The defendant pay the plaintiff’s legal costs of the proceeding on an indemnity basis pursuant to clause 9.7 of the Contract.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The court must also consider that the contents of any filed defence along with the statement of claim and any reply to determine the issues to be tried in the defendant’s absence, which are then to be determined in accordance with the evidence called by the plaintiff.[6] Whilst that does not mean that the plaintiff will or must succeed on all issues, it will mean that an absent defendant will likely fail on any issue on which the defendant has a burden of proof.[7] [6]Orchid Avenue at [9][7]Orchid Avenue at [9] Is the plaintiff entitled to judgment? The trial then proceeded. The plaintiff was granted leave to file an amended claim, which reduced the overall amount of damages claimed. Consistent with a direction given on 1 February 2021 that evidence could be given on affidavit, the plaintiff tendered a number of affidavits containing the evidence which he adduced to prove his case. The defendant’s amended defence to certain paragraphs of the amended statement of claim was struck out by Judge Kent QC on 23 October 2020 and the court’s further order was that no leave to re-plead was granted.[8] Consequently, a number of the paragraphs of the amended statement of claim were admitted by the defendant by operation of r 166(1) of the UCPR. [8]Court Document 23 The plaintiff provided the court with a pleadings matrix[9] which identified the issues arising on the pleadings. It is apparent from a review of that document that it was either expressly admitted by the defendant, or admitted consequent upon the defence being struck out that: [9]Exhibit 2 in the trial(a)the plaintiff was the registered owner of the Property;(b)the contract for the sale of the Property was dated 25 October 2018 (Contract)[10] and it included the pleaded express terms which provided relevantly: [10]Exhibit JEC01-02 to the affidavit of John Edward Clancy affirmed 2 February 2021 (Clancy Affidavit). The Contract is an REQ contract for Residential Lots in a Community Titles Scheme. It is dated 25 October 2018. There are four special conditions which I shall return to in due course(i)that the purchase price for the Property was $1,105,000.00;(ii)a total deposit of $75,000.00 (Deposit) was payable by the defendant to the trust account of Taylorsproperty.com.au Pty Ltd as the deposit holder;(iii)the Settlement Date was 28 June 2019;(iv)for a default interest rate of 9.3 percent per annum being the contract rate applying as at 25 October 2018;(v)by the effect of clause 1.1(2)(u)(i), “Essential Term” includes, in the case of breach by the defendant, clause 6.1;(vi)by the effect of clause 9.1, without limiting any other right or remedy, if the defendant fails to comply with an Essential Term, that plaintiff may affirm or terminate the Contract;(vii)pursuant to clause 9.4: “If the Seller terminates this Contract under clause 9.1, it may do any or all of the following:(A) Resume possession of the Property;(B) Forfeit the Deposit and any interest earned;(C) Sue the Buyer for damages;(D) Resell the Property;” (viii)pursuant to clause 9.7 that the Seller may claim damages for any loss it suffers as a result of the Buyer’s default including its legal costs on an indemnity basis and the cost of any Work and Expenditure under clause 7.6(3); and(ix)for payment of interest at the default rate in accordance with clause 9.9 of the Contract on, relevantly:(A) any amount payable under the Contract which was not paid when due and accruing from the date it was due until paid;(B) any judgment for money payable under the Contract and accruing from the date of judgment until paid; and(x)that by clause 8.6(4), the defendant indemnified the plaintiff against any expenses or damages incurred by the plaintiff as a result of the defendant’s possession of the Property;(c)the defendant had paid the deposit to the deposit holder; (d)in breach of the Contract, the defendant failed to pay the balance of the Purchase Price on or before the Settlement Date or at all;(e)this breach was a breach of an Essential Term of the Contract and entitled the plaintiff to affirm or terminate the Contract; (f)On or about 18 November 2019 the plaintiff terminated the Contract pursuant to Clause 9.1 of the Contract by notice in writing; (g)the deposit has been forfeited to the plaintiff; and(h)the defendant took possession of the Property on 9 November 2018.

Ratio Decidendi

Legal Principle Established

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CITATION:	Clancy v Carlson [2021] QDC 33
PARTIES:	JOHN EDWARD CLANCY (plaintiff) v TESSA JANE SEDDON CARLSON (defendant)
FILE NO:	D306/2019
DIVISION:	Civil
PROCEEDING:	Civil Trial
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	15 July 2021
DELIVERED AT:	Southport
HEARING DATE:	3 February 2021
JUDGE:	Dann DCJ
ORDERS:	1. Judgment for the plaintiff against the defendant in the proceeding. 2. The defendant pay to the plaintiff the sum of $137,800.63. 3. The defendant pay to the plaintiff interest at the rate of 9.3% per annum pursuant to clause 9.9 of the Contract on the judgment of $137,800.63. 4. The defendant pay the plaintiff’s legal costs of the proceeding on an indemnity basis pursuant to clause 9.7 of the Contract.
CATCHWORDS:	CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – VENDOR’S REMEDIES – DAMAGES – where the parties entered into contract for the sale of a property – where the defendant failed to pay the balance of the purchase price on or before settlement date or at all and was therefore in breach of an essential term of the contract – where the court was satisfied that the defendant was aware of the trial date and it was appropriate for the plaintiff to seek to establish its claim pursuant to r 476 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the market value of the property was $950,000.00 at the date of settlement and date of the breach – whether the plaintiff suffered damage between the contract price and the market value as at the date of settlement – whether the plaintiff incurred legal costs and has suffered loss and damage which he can recover from the defendant as a result of the difference in purchase price and market value – whether the plaintiff can claim the real estate agent commission fees of $25,000, retained by the agent, as loss and damage suffered – where the plaintiff claims pre-judgment interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld) – whether the appropriate rate for pre-judgment interest is the rate prescribed under the Supreme Court Practice Direction No 7 of 2013 – whether the plaintiff is entitled to unpaid license fees, rates, water and body corporate fees – whether the plaintiff can claim for indemnity from the defendant for expenses or damages incurred by the plaintiff as a result of the defendant’s possession of the property – whether the plaintiff can claim interest on the license fees, bond cleaning, repairs, rates, water charges and body corporate fees pursuant to clause 9.9 of the contract – whether an order for the payment of the legal costs of the proceeding on an indemnity basis can be made against the defendant pursuant to clause 9.7 of the contract – whether the plaintiff can claim interest on the total amount of the judgment at the rate of 9.3% per annum pursuant to clause 9.9 of the contract. Uniform Civil Procedure Rules 1999 (Qld), r 166(1),…