Curtain & Anor v Kirk & Anor

SUPREME COURT OF QUEENSLAND

CITATION:

Curtain & Anor v Kirk & Anor [2019] QSC 317

PARTIES:

PAUL JAMES DOUGLAS CURTAIN

(first plaintiff)

MARGARET ANNE CURTAIN

(second plaintiff)

v

JULIE FAY KIRK

(first defendant)

JUDE CHRISTOPHER KIRK

(second defendant)

FILE NO/S:

BS No 4749 of 2016

DIVISION:

Trial Division

PROCEEDING:

Civil trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2019 to 21 February 2019

JUDGE:

Douglas J

ORDER:

1.        Judgment for the plaintiffs against the defendants for $635,798 together with interest.

2.        The parties will be heard as to the amount of interest and costs.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – OTHER PARTICULAR CASES – where the plaintiffs were the owners of a unit – where the plaintiffs agreed to sell that unit to the defendants with settlement to take place a year and a day later – where the defendants took possession of the unit in advance of settlement pursuant to special conditions of the contract – where the defendants purported to rescind and terminate the contract for breach of the requirement under s 421 of the Environmental Protection Act 1994 (EPA) that they be given written notice that the particulars of the unit were recorded in the Environmental Management Register (EMR) – where the plaintiffs contended that the defendants’ purported termination was unlawful and a repudiation of the contract, which the plaintiffs purported to accept, terminating the contract – whether the unit was, at the time of the sale to the defendants, on the EMR – whether, if the unit was on the EMR, the plaintiffs were aware of that fact at the time of the sale to the defendants – whether the defendants had entered into possession under the agreement before purporting to rescind – whether the defendants’ purported rescission was valid – whether s 421 afforded the defendants a privately actionable right to damages where there had been a breach of the section

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – OTHER PARTICULAR CASES – where the plaintiffs were the owners of a unit – where the plaintiffs agreed to sell that unit to the defendants with settlement to take place a year and a day later – where the defendants took possession of the unit in advance of settlement pursuant to special conditions of the contract –where the defendants purported to rescind and terminate the contract for breach of a warranty under the sale contract that the plaintiffs were not aware of any facts or circumstances that may lead to the land being classified as contaminated land within the meaning of the EPA – where the plaintiffs contended that the defendants’ purported termination was unlawful and a repudiation of the contract, which the plaintiffs purported to accept, terminating the contract – whether the plaintiffs were aware…