Create Group Pty Ltd v. Frew - [2008] QDC 226

[2008] QDC 226

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2623 of 2007

CREATE GROUP PTY LTD	Plaintiff
and
SIMON FREW & ANOR	Defendant

BRISBANE

..DATE 25/07/2008

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 293 r 304(2) - whether defendants should be granted summary judgment where plaintiff wished to discontinue and pursue an existing parallel Supreme Court claim - certain costs awarded to defendant on indemnity basis and two proceedings were running.

HIS HONOUR: This is an unusual proceeding in which the plaintiff has taken an assignment of the rights of a company called Piperland which was the vendor of separate lots in a new apartment building on the Sunshine Coast purchased "off the plan", one by each of the defendants, who are spouses. The involvement of the plaintiff, it would appear, was not wholly unexpected. It may have played some role in the marketing of the subject properties.

The contracts in respect of the lots are dated late May or 1st of June 2007. They provide for the purchase price in each case of $725,000 which, in the pleadings, is agreed to be the purchase price. That, for practical purposes, soon ceased to be the situation, if it ever truly was the situation. The parties are entitled to accept propositions in pleadings, whether or not they represent the truth of things, if so advised. Although the defendants were perhaps somewhat coy in the pleadings about whether their signatures appeared on them, they accept the existence of, and have at no point contended that they were not bound by, so-called "vendor finance agreements", each dated 19th of June 2007. The second defendant's is typical and is in the terms following:

"19 June 2007
Attention:Wei Keat Tang
62 Bertha St
Wooloowin Q 4030

RE:Under the contract dated 1 June 2007, for the sale of apartment in the Aqua Vista development, at 64 Sixth Avenue, Maroochydore (previously Lot 1 on RP 200324, County of Canning, Parish of Mooloolah, title reference 16727066), to Wei Keat Tang for the purchase price of $725,000, which includes the complete furniture, window dressings, and electrical package, and vendor finance.

The developer, Piperland Maroochydore Pty Ltd, agrees to
$123,500

offer a rebate of ~~$149,700~~ at settlement (which includes

vendor finance for a maximum of one year in the amount of

~~$50,200~~) if settlement occurs within 10 business days

$50,000

following the issue of titles.
For clarity, the summary of calculations surrounding the
sale agreement are as follows:

Contract Price as requested $725,000
List Price (for calculations) $695,000

Less 10% discount of $69,500 discount
$625,500 actual purchase price

~~Vf of furniture $26,000~~ $ 23,700

Vf of Stamp duty $23,700 ~~$ 50,200~~ vendor finance(Vf)

~~$575,300~~ net at settlement
~~$601,200~~ ð $601,500

The Vendor Finance is to be secured by suitable property, and reflected in formal documentation.
Yours faithfully,
(signed) ……………………………………………
Gary Bell
Director
Piperland Maroochydore Pty Ltd
ACN 11204567264
Signed in agreement …………………………………"
Wei Keat Tang

Completion occurred, essentially on the basis of the figures in the…

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 Create Group Pty Ltd v. Frew

Details

AGLC: Create Group Pty Ltd v Frew [2008] QDC 226
Case: [2008] QDC 226
Decision Date: 25 July 2008

CaseChat Overview and Summary

In the case of Create Group Pty Ltd v. Frew, the plaintiff, Create Group, sought to enforce vendor finance agreements against the defendants, Simon Frew and another party. The dispute centred around the interpretation of the vendor finance agreements and whether the defendants owed the plaintiff $50,000 each. The matter was heard in the District Court of Queensland. The legal issues involved the interpretation of the vendor finance agreements and whether the defendants were entitled to summary judgment under the Uniform Civil Procedure Rules.

The court found that the vendor finance agreements were drafted inexpertly and that their interpretation was ambiguous. The court declined to grant the defendants' application for summary judgment as it found the agreements could be interpreted in more than one way. Furthermore, the court considered that the plaintiff's decision to pursue a parallel claim in the Supreme Court of Queensland had led to an abuse of process. Consequently, the court granted the plaintiff leave to discontinue the District Court proceeding under rule 304 and ordered that the proceeding be dismissed if the notice of discontinuance was not filed by 31 July 2008. The court also ordered that the plaintiff pay the defendants' costs of and incidental to the proceeding on an indemnity basis, except for the costs of the hearing on 25 July 2008, which were to be assessed on the standard basis.

In summary, the court dismissed the defendants' application for summary judgment and granted the plaintiff leave to discontinue the proceeding. The court ordered the plaintiff to pay the defendants' costs on an indemnity basis, with the exception of the costs of the hearing on 25 July 2008.

Orders