Devpro (a firm) v. Seamark & Anor

Case [2007] QCA 241

SUPREME COURT OF QUEENSLAND

CITATION:

Devpro (a firm) v Seamark & Anor [2007] QCA 241

PARTIES:

DEVPRO (A FIRM)
(plaintiff/ first respondent)
v
SEAMARK PTY LTD ACN 058 624 516
(first defendant/ appellant)
MACPRO PTY LTD ACN 068 964 447
(second defendant/ second respondent)

FILE NO/S:

Appeal No 474 of 2007
SC No 3221 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 July 2007

DELIVERED AT:

Brisbane

HEARING DATE:

15 June 2007

JUDGES:

Jerrard JA, White and Atkinson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Dismiss the appeal
2. Appellant pay the first respondent’s costs

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS – where a contract to purchase a site for development was entered into – where the contract was executed – where the appellant later purported to terminate the agreement – whether the termination was valid in accordance with clause 16.6 of the contract

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS – where the learned trial judge was required to calculate a “development fee” in accordance with clause 13 in the contract – where the calculation of the development fee was contingent on the interpretation of the terms “Building” and “fully leased” – whether in the circumstances the buildings were fully leased

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS – where the contract provided a dispute resolution mechanism in clause 22 – where the contract also contained a requirement of “full faith” in clause 28 – whether clauses 22 and 28 can be used to determine what the percentage profit would be for the purposes of clause 13.2 – whether a term relating to the payment of a fair and reasonable percentage should be implied in the contract

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS – where the learned trial judge calculated a reasonable construction cost – whether the calculation was correct

TRADE AND COMMERCE – TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION – CONSUMER PROTECTION – UNCONSCIONABLE CONDUCT – WHAT CONSTITUTES – whether the conduct was unconscionable

Trade Practices Act 1974 (Cth), s 52AC

Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600, applied
Foley v Classique Coaches Ltd (1934) 2 KB 1, distinguished
Sargent v ASL Developments Ltd (1974-75) 131 CLR 634, distinguished
Sudbrook Trading Estates Ltd v Eggleton [1983] 1 AC 444, distinguished

COUNSEL:

M Stewart SC, with D O’Sullivan, for the appellant 
S Couper QC for the first respondent

SOLICITORS:

Schweikert Lawyers for the appellant
Forbes Dowling Lawyers for the first respondent
McCullough Robertson for the second respondent (the second respondent withdrew from the appeal)

  1. JERRARD JA:  This appeal concerns the construction of an agreement executed on 10 December 1998 between the…

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Details
AGLC
Devpro (a firm) v Seamark [2007] QCA 241
Case
[2007] QCA 241
Decision Date

CaseChat Overview and Summary

In the case of Devpro (a firm) v. Seamark & Anor, the appellant, Devpro, sought to appeal a decision made by the primary judge in relation to a contract for the purchase of a site for development. The contract was executed, but Devpro later attempted to terminate the agreement. The appellant argued that the termination was valid under clause 16.6 of the contract. The respondents, Seamark and another party, opposed the termination and argued that it was not valid. The court was required to determine the validity of the termination and the interpretation of certain clauses within the contract.

The legal issues before the court included whether the termination of the contract was valid under clause 16.6, the interpretation of the terms "Building" and "fully leased" in clause 13, and whether clauses 22 and 28 of the contract could be used to determine the percentage profit for clause 13.2. Additionally, the court had to consider whether a term relating to the payment of a fair and reasonable percentage should be implied in the contract and whether the construction cost calculation made by the primary judge was correct. Finally, the court had to determine whether the conduct of Devpro was unconscionable under the Trade Practices Act 1974 (Cth).

The court found that the termination of the contract was not valid under clause 16.6, as the conditions specified in the clause had not been met. The court also determined that the term "Building" should be interpreted to include ancillary structures, and that the buildings were not fully leased as required by clause 13. The court further held that clauses 22 and 28 could not be used to determine the percentage profit for clause 13.2, and that a term relating to the payment of a fair and reasonable percentage should not be implied in the contract. The court found that the primary judge's calculation of the construction cost was correct. Finally, the court held that Devpro's conduct was not unconscionable under the Trade Practices Act.

In light of the above findings, the court dismissed the appeal and ordered the appellant to pay the first respondent's costs.

Orders

Orders of the court

1. Dismiss the appeal

2. Appellant pay the first respondent’s costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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