Denning v Jet Development Pty Ltd - [2006] QCA 544

SUPREME COURT OF QUEENSLAND

CITATION:

Denning v Jet Development Pty Ltd & Anor [2006] QCA 544

PARTIES:

ROYALIN MARGARET DENNING
(respondent/applicant)
v
JET DEVELOPMENT PTY LTD ACN 107 913 762
(first applicant/first respondent)
FERNVALE PROJECT PTY LTD ACN 119 408 767
(second applicant/second respondent)

FILE NO/S:

Appeal No 10779 of 2006
SC No 4879 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

15 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

12 December 2006; 15 December 2006

JUDGE:

Keane JA

ORDER:

Upon the applicant giving the usual undertaking as to damages, and the undertaking in Annexure A initialled by me, the order of Mr Justice Chesterman of 5 December 2006 in BS 4879 of 2006 be stayed pending the determination of the appeal the subject of these proceedings

Costs, including previously reserved costs, are reserved to the determination of the appeal.

I direct:

·     The applicant/appellant to provide Outline of Argument on or before 22 December 2006

·     The respondent to provide Outline of Argument on or before 19 January 2007

·     The applicant/appellant to provide any reply on or before 25 January 2007

·     The respondent to provide any reply to the applicant/appellant's reply on or before 31 January 2007

·     Parties to deliver draft index to record books on or before 31 January 2007 together with an advice that the parties agree on the contents

·     Applicant to file and deliver record books on or before 7 February 2007

·     Lists and photocopies of authorities to be provided 2 days prior to the hearing

·     The appeal be heard 23 February 2007

·     The parties to follow the Registrar's directions in addition to these directions.

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - STAY OF PROCEEDINGS - learned primary judge ordered specific performance of a contract for the sale of land - applicant-vendor seeks stay of execution until appeal is resolved - respondent-purchaser intends to use land for shopping centre - whether planning approval process or development process realistically requires purchaser to be legal owner of the land - applicant's son operates saw mill on the land - applicant offered certain undertakings related to respondents' use of the land - whether stay should be granted

Alexander & Ors v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 688, cited
Colefax v Piggins [2001] QCA 427; Appeal No 6877 of 2001, 5 October 2001, cited

COUNSEL:

P J Favell for the applicant
J W Peden for the respondents

SOLICITORS:

Morgan Conley for the applicant
Flower & Hart for the respondents

KEANE JA: On 5 December 2006, the learned trial judge made orders for the specific performance of a contract for the sale of land at Fernvale. The applicant is the vendor and the second respondent is the purchaser. Under the order of 5 December 2006, completion of the contract was due to take place on 12 December…

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 Denning v Jet Development Pty Ltd

Details

AGLC: Denning v Jet Development Pty Ltd [2006] QCA 544
Case: [2006] QCA 544
Decision Date: 15 December 2006

CaseChat Overview and Summary

Denning and others sought an appeal against a decision made by the Supreme Court of Queensland, which had ordered specific performance of a contract for the sale of land. The purchasers, Jet Development Pty Ltd, intended to use the land for a shopping centre. Denning, the vendor, sought a stay of execution until the appeal was resolved. Denning's son operated a saw mill on the land and Denning offered certain undertakings related to the respondents' use of the land. The court needed to decide whether the planning approval process or development process realistically required the purchaser to be the legal owner of the land, and whether a stay should be granted.

The court considered the case of Alexander & Ors v Cambridge Credit Corporation Ltd, which established that a stay of execution should not be granted unless the applicant demonstrates a serious question to be tried on the appeal and that the balance of convenience favours the grant of a stay. The court also referred to Colefax v Piggins, which highlighted the importance of considering the interests of third parties. The court found that the balance of convenience favoured granting the stay as the land was being used for a saw mill and there was no evidence that the development process required the purchaser to be the legal owner of the land. Additionally, Denning's undertakings provided sufficient protection to the purchasers' interests.

The court granted the stay of execution pending the determination of the appeal. The parties were directed to provide outlines of argument, record books, and lists of authorities in accordance with the court's directions. The appeal was scheduled to be heard on 23 February 2007. Costs were reserved to the determination of the appeal.

Orders

Orders of the court

Upon the applicant giving the usual undertaking as to damages, and the undertaking in Annexure A initialled by me, the order of Mr Justice Chesterman of 5 December 2006 in BS 4879 of 2006 be stayed pending the determination of the appeal the subject of these proceedings

Costs, including previously reserved costs, are reserved to the determination of the appeal.

I direct:

· The applicant/appellant to provide Outline of Argument on or before 22 December 2006

· The respondent to provide Outline of Argument on or before 19 January 2007

· The applicant/appellant to provide any reply on or before 25 January 2007

· The respondent to provide any reply to the applicant/appellant's reply on or before 31 January 2007

· Parties to deliver draft index to record books on or before 31 January 2007 together with an advice that the parties agree on the contents

· Applicant to file and deliver record books on or before 7 February 2007

· Lists and photocopies of authorities to be provided 2 days prior to the hearing

· The appeal be heard 23 February 2007

· The parties to follow the Registrar's directions in addition to these directions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Denning v Jet Development Pty Ltd & Anor [2006] QCA 544
PARTIES:	ROYALIN MARGARET DENNING (respondent/applicant) v JET DEVELOPMENT PTY LTD ACN 107 913 762 (first applicant/first respondent) FERNVALE PROJECT PTY LTD ACN 119 408 767 (second applicant/second respondent)
FILE NO/S:	Appeal No 10779 of 2006 SC No 4879 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Stay of Execution
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	15 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	12 December 2006; 15 December 2006
JUDGE:	Keane JA
ORDER:	Upon the applicant giving the usual undertaking as to damages, and the undertaking in Annexure A initialled by me, the order of Mr Justice Chesterman of 5 December 2006 in BS 4879 of 2006 be stayed pending the determination of the appeal the subject of these proceedings Costs, including previously reserved costs, are reserved to the determination of the appeal. I direct: · The applicant/appellant to provide Outline of Argument on or before 22 December 2006 · The respondent to provide Outline of Argument on or before 19 January 2007 · The applicant/appellant to provide any reply on or before 25 January 2007 · The respondent to provide any reply to the applicant/appellant's reply on or before 31 January 2007 · Parties to deliver draft index to record books on or before 31 January 2007 together with an advice that the parties agree on the contents · Applicant to file and deliver record books on or before 7 February 2007 · Lists and photocopies of authorities to be provided 2 days prior to the hearing · The appeal be heard 23 February 2007 · The parties to follow the Registrar's directions in addition to these directions.
CATCHWORDS:	APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - STAY OF PROCEEDINGS - learned primary judge ordered specific performance of a contract for the sale of land - applicant-vendor seeks stay of execution until appeal is resolved - respondent-purchaser intends to use land for shopping centre - whether planning approval process or development process realistically requires purchaser to be legal owner of the land - applicant's son operates saw mill on the land - applicant offered certain undertakings related to respondents' use of the land - whether stay should be granted Alexander & Ors v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 688, cited Colefax v Piggins [2001] QCA 427; Appeal No 6877 of 2001, 5 October 2001, cited
COUNSEL:	P J Favell for the applicant J W Peden for the respondents
SOLICITORS:	Morgan Conley for the applicant Flower & Hart for the respondents