Colvin v Lennard and O'Brien

DISTRICT COURT OF QUEENSLAND

 

 

CITATION:

Colvin v Lennard & O’Brien  [2012] QDC 71

PARTIES:

COLVIN, John Maxwell

(Plaintiff)
v
LENNARD, Philip
(First Defendant)
and
O’BRIEN, Susan Margaret
(Second Defendant)

FILE NO:

DIS 3661/08

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

May 1, 2012

DELIVERED AT:

Brisbane

HEARING DATE:

April 30, 2012

JUDGE:

Koppenol DCJ

ORDER:

1.   Judgment for Plaintiff against Defendants for $113,317.87 plus interest of $37,969.77 and costs (including reserved costs, if any);

2.   Defendants are to pay Plaintiff’s costs on and after September 1, 2009 on indemnity basis.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRIN-CIPLES – INTENTION TO CREATE LEGAL RELA-TIONSHIP – AGREEMENTS CONTEMPLATING EXECUTION OF FORMAL DOCUMENTATION – WHETHER BINDING CONTRACT – where letter of intent with details of agreement signed by all parties – where Defendants alleged letter of intent was mere lease application form – where works agreed to be done were in issue – where agreement between parties was not concluded with formal lease – where  creation of formal lease in fuller terms with no different effect than letter of intent was to be created – whether letter of intent constituted concluded lease contract.

Uniform Civil Procedure Rules, r 166

Masters v Cameron (1954) 91 CLR 353, applied
Niesmann v Collingridge (1921) 29 CLR 177, applied

Moffatt Property Development Group Pty Ltd v Hebron Park Pty Ltd [2009] QCA 60, applied

COUNSEL:

P Ahern for the Plaintiff
First Defendant appeared on his own behalf

No Appearance for the Second Defendant

SOLICITORS:

Norton Rose for the Plaintiff

First Defendant appeared on his own behalf
No Appearance for the Second Defendant

1. The Plaintiff owns a commercial property in Fortitude Valley. On July 17, 2006, following various discussions between the parties and the Plaintiff’s real estate agent, the Defendants signed a letter of intent to lease the property. The letter was then signed by the Plaintiff’s predecessor in title (his mother, who has since died) on or about July 18, 2006 and the Defendants were informed of that the next day. On July 25, 2006 the Defendants paid the deposit of $8,429.66. Two days later, the Defendants purported to terminate the arrangement. The Plaintiff regarded that as a repudiation. The Plaintiff accepted the Defendants’ repudiation and terminated the arrangement by letter dated August 4, 2006 to the Defendants. No formal lease instrument was ever prepared or executed.

1. The Plaintiff argues that the letter of intent was a binding agreement and accordingly the Defendants are liable for the quantified damages of $113,317.87―as the property was not re-let until January 2007.

1. The Defendants say that the letter of intent was really just an application form for a lease to enable the Plaintiff to assess their lease-worthy capacity. They also say that the Plaintiff (a) revised the bank guarantee requirement so as to require its provision by the Defendants; (b) did not complete certain required works; and (c) did not remove the “For Lease” signs on the property.

1. The executed letter of intent…