Cleargate Pty Ltd v Pacific Commerce Finance Ltd

[1994] QCA 139

THE COURT OF APPEAL	[1994] QCA 139
SUPREME COURT OF QUEENSLAND

Appeal No. 186 of 1993

Brisbane

Before McPherson J.A.
Pincus J.A.
Byrne J.

[Cleargate Pty Ltd v. Pacific Commerce Finance Ltd]

BETWEEN

CLEARGATE PTY LTD

(Plaintiff) Respondent

AND

PACIFIC COMMERCE FINANCE LIMITED

(Defendant) Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the Tenth day of May 1994

Summary judgment was given against the appellant, which is the defendant in the proceedings, in an action in the District Court instituted by the respondent plaintiff claiming $60,000 as the balance of a deposit payable under a written contract dated 12 October 1990. The contract was for the sale by the respondent as vendor to the appellant as purchaser of certain registered land on the Gold Coast for a price of $1,400,000.

The contract is in the R.E.I.Q. standard printed form (1982 ed.), but with added special conditions contained in an annexure "A". One such condition relevant here is cl.33, which is as follows:

"33. The deposit, namely FIFTY THOUSAND DOLLARS
($50,000.00), shall be paid by way of:

(a)  TEN THOUSAND DOLLARS ($10,000.00) on signing of Contract;

(b)  a further FIFTEEN THOUSAND DOLLARS ($15,000.00) Thirty (30) days from the date hereof;

(c)  a further TWENTY FIVE THOUSAND DOLLARS ($25,000.00) Forty Five (45) days from the date hereof."

The initial sum of $10,000 was, as cl.33 required, paid on signing the contract. Later on, the contract was varied by correspondence passing between the solicitors for the parties. The variation, so far as it affected the deposit, provided for the original amount of $60,000 to be increased to $70,000, with the resulting unpaid balance of $60,000 to be paid no later than 17 December 1990. There were variations of the contract in some other respects including the date for completion, which was deferred from 14 December 1990 to 15 January 1991.

In the event, the appellant failed to settle the contract on the due date as varied or at all. However, apart from twice serving on the appellant statutory demands under s.460(2) of the Corporation Law, the respondent did nothing until May 1993. By letters forwarded in that month it purported to appoint 15 October 1993 as the new date for completing the contract. So far as the evidence goes, nothing happened on that or any other subsequent date.

In those circumstances and despite occasional suggestions to the contrary, the rule is that the respondent is entitled to recover the unpaid balance of the deposit : Bol v. Ristevski [1981] V.R. 120; Prendergast v. Chapman [1988] 2 N.Z.L.R. 177. The present case is stronger even than those two because here nothing has been done by the respondent to exercise its right (if any) to terminate the contract.

On appeal before us it was acknowledged by counsel for the appellant that his client had become indebted for the balance deposit of $60,000, which under the contract as varied was due on 17 December 1990. It was, however, argued that the indebtedness had somehow been "waived" by the respondent. Reference was made to cl.11 of the conditions of sale appearing in the printed form of contract. Its effect is that if the purchaser fails to pay the deposit various remedies become available to and exercisable by the vendor. Their precise detail does not matter because, apart from the fact that the respondent here is not shown to have adopted any of them, those remedies are expressly stated in cl.11 to be "in addition to" any other right conferred on the vendor at law or in equity.

No other basis for waiver was advanced by counsel for the appellant. The written outline of argument contains two further submissions. Neither was pursued in what was said to us on appeal. The first is that the contract had been abandoned by the parties. There is nothing to support the suggestion of abandonment save the bare fact that, between the varied date for completion of 15 January 1991 and the nomination in May 1993 of 15 October 1993 as a fresh date for completion, no steps seem to have been taken to secure completion of the contract. It is not possible from the state of inactivity during that period to infer an agreement by the parties to discharge the contract: cf. Fitzgerald v. Masters (1956) 95 C.L.R. 420. It is therefore not at all surprising that this part of the written outline was given no prominence in the appellant's oral submission at the hearing.

The second point in the written outline is, if anything, even less tenable than the first. It is based on an assertion that the respondent had waived the essentiality of the time for performance of the contract. As to that, it is enough to say that, even if some such waiver had been shown, it would not have prevented the respondent from obtaining judgment for the debt due to it at law. It could at most have been relevant to a claim for specific performance, or to a claim that the contract had been rescinded. No claim of that kind is made here.

The learned judge of District Courts who heard the matter below was plainly correct in concluding that no triable issue was shown. Judgement was properly entered in the action and the appeal must be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 186 of 1993

Brisbane
[Cleargate Pty Ltd v. Pacific Commerce Finance Ltd]

BETWEEN

CLEARGATE PTY LTD

(Plaintiff) Respondent

AND

PACIFIC COMMERCE FINANCE LIMITED

(Defendant) Appellant

McPherson J.A.
Pincus J.A.

Byrne J.

Judgment delivered 10/05/94

Reasons for judgment by the Court

APPEAL DISMISSED WITH COSTS.

CATCHWORDS	VENDOR & PURCHASER - DEPOSIT - REIQ contract with special conditions - Appellant failed to settle on 15 January 1991 - Respondent did nothing until May 1993 when 15 October 1993 chosen as new settlement date - No completion - Whether respondent entitled to recover unpaid balance of deposit - Whether waiver.
Counsel:	P.A. Coombe for the appellant B. Laurie for the respondent

Solicitors: Duells, T/A for Caradoc Evans & Co.,

Parkwood, for the appellant
Georgeson & Co., T/A for Murphy Podmore &
Associates for the respondent

Hearing Date: 27 April 1994