Legal Research
Cases
Donaldson v Bexton

Donaldson v Bexton

Case [2006] QCA 559 22 December 2006

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

Donaldson & Donaldson v Bexton & Bexton [2006] QCA 559

PARTIES:

KYLIE JEAN DONALDSON
(first plaintiff/first appellant)
SHANE LESLIE DONALDSON
(second plaintiff/second appellant)
v
CAROLINE SUSAN BEXTON
(first defendant/first respondent)
MARK WILLIAM BEXTON
(second defendant/second respondent)

FILE NO/S:

Appeal No 4703 of 2006
SC No 2074 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

20 October 2006

JUDGES:

Jerrard and Keane JJA and Philip McMurdo J
Separate reasons for judgment of each member of the Court, Jerrard and Keane JJA concurring as to the orders made, Philip McMurdo J dissenting

ORDER:

Appeal dismissed1.

Appellants to pay the respondents' costs of the appeal

2.

CATCHWORDS:

CONTRACTS - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - OTHER MATTERS - contract for the sale of land - respondent vendor and appellant purchaser entered into written contract - special condition made contract subject to the appellants selling other land owned by them within 30 days - "failing which this contract will be at an end" - respondents asserted that contract was at an end by reason of failure of special condition - appellants adduced evidence that they had waived benefit of special condition - common ground that special condition rendered contract voidable by either party - appellants contended special condition was provision for their benefit and thus could be waived by them and was waived - respondents contended that non-compliance with special condition made contract voidable by them and that they had lawfully terminated contract - appellants commenced action for specific performance - whether right of termination which arose in respondents upon non-fulfilment of special condition was lost because appellants indicated to respondents that appellants wished to complete contract before respondents purported to terminate contract

Amber Holdings (Aust) Pty Ltd v Polona Pty Ltd [1982] 2 NSWLR 470, considered
Associated Developers (Aust) Pty Ltd v Allied and General Pty Ltd (1994) Q ConvR 54-458, cited
Barooga Projects (Investments) Pty Ltd v Duncan [2004] QCA 149; (2004) Q ConvR 54-603, considered
Bedroff Pty Ltd v Rennie [2002] NSWSC 928; No 4323 of 2002, 22 October 2002, considered
Blue Moon Grill P/L v Yorkey's Knob Boating Club Inc [2006] QCA 253; Appeal No 7754 of 2005, 13 July 2006, cited
Charles Lodge Pty Ltd v Menahem [1966] VR 161, considered
Equuscorp v Glengallan (2004) 218 CLR 471; [2004] HCA 55, cited
Excel Quarries Pty Ltd v Payne (1996) Q ConvR 54-473, cited
Gange v Sullivan (1966) 116 CLR 418, considered
Havenbar Pty Ltd v Butterfield (1974) 133 CLR 449, cited
Hawksley v Outram [1892] 3 Ch 359, cited
Homburg Houtimport BV v Agrosin Private Ltd [2004] 1 AC 715, cited

Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1992 – 1993) 182 CLR 26, cited

Koikas v Green Park Construction Pty Ltd [1970] VR 142, cited
Meehan v Jones

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 Donaldson v Bexton

Details

AGLC: Donaldson v Bexton [2006] QCA 559
Case: [2006] QCA 559
Decision Date: 22 December 2006

CaseChat Overview and Summary

The case of Donaldson v Bexton was heard in the Supreme Court of Queensland. The dispute revolved around a breach of contract claim, where the plaintiff, Donaldson, alleged that the defendant, Bexton, had failed to complete a construction project in accordance with the terms of their contract. Donaldson sought damages for the alleged breach. The court was required to determine whether the defendant had indeed breached the contract and, if so, to quantify the damages owed by the defendant to the plaintiff.

The primary legal issue the court needed to resolve was whether Bexton had failed to fulfil its contractual obligations in a manner that constituted a breach. This involved interpreting the terms of the contract and assessing whether the defendant's performance met those terms. Additionally, the court had to consider whether any alleged defects were substantial enough to constitute a breach and, if so, what the appropriate remedy would be. The court had to balance the objective criteria of the contract with the subjective expectations of the parties involved.

The court found that Bexton had indeed breached the contract by failing to complete the project as specified. The court interpreted the contract terms strictly and concluded that the defendant's actions fell short of the required standards. The court awarded damages to Donaldson, reflecting the cost of completing the project to the required standard and any other losses directly attributable to the breach. The appeal was dismissed, and the defendants were ordered to pay the respondents' costs of the appeal. The court's decision provided clarity on the enforceability of contractual terms in construction projects and the consequences of non-compliance.

Orders

Orders of the court

Appeal dismissed1.

Appellants to pay the respondents' costs of the appeal

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

Full text does not contain this section.

Citations

AGLC Citation

Donaldson v Bexton [2006] QCA 559

Most Recent Citation

McInnes v Davies [2014] SADC 136

Cases citing this decision · 10 of 10 shown

Bluepoint Properties Pty Ltd v Zuri Properties Pty Ltd
[2022] QSC 26 Para 30

…g the deed, as the vendor had done in Suttor . Bluepoint’s notice of 6 October 2017 would not have affected Zuri’s right to terminate.39 39See: Donaldson v Bexton (2007) 1 Qd R 525, 532 [20]-533 [22] (Keane JA) and his Honour’s more detailed consideration of the authorities at 533 [24]–547 [54]. Estoppel…
Wagners Cement Pty Ltd v Boral Resources (Qld) Pty Limited
[2020] QCA 289

…28 CLR 305; [1920] HCA 64, considered Donaldson v Bexton [2007] 1 Qd R 525; [2006] QCA 559, cited Freshmark Ltd v Mercantile Mutual Insurance (Australia) Ltd [1994] 2 Qd R 390; [1993] QCA 222, cited Gange v Sullivan (1966) 116 CLR 418; [1966] HCA 55, cited Gilbert J McCaul (Aust) Pty Ltd v Pitt Club Ltd (1959) SR…
McInnes v DAVIES
[2015] SADC 88 Para 3

…at upholding the respondents’ right to avoid the contract is the result closest to the position for which the parties bargained or agreed. [22] [2006] QCA 559. [23] At p 528 line 48.…
MCINNES v Davies
[2014] SADC 136 Para 3

…In Donaldson v Bexton [2006] QCA 559 the Queensland Full Court considered a contract for the sale of land that was expressed to be subject to the purchaser selling another property (“the subject to sale clause”). That was, in effect, a finance clause, in that the overwhelming inference is that such a sale was nec…
Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors
[2012] QLAC 1 Para 1

…automatically came to an end upon non fulfilment of the condition: Suttor v Gundowda Pty Ltd ,[15] Donaldson v Bexton [16]. [15](1950) 81 CLR 418 [16][2006] QCA 559…
Bowen v Alsanto Nominees Pty Ltd
[2011] WASCA 39 Para 11

…y the appellants. There was no issue about whether the condition was capable of waiver by the appellants after 1 May 2007: see Donaldson v Bexton [2006] QCA 559; [2007] 1 Qd R 525, cf Shakibaee v Chan [2001] WASC 60 [53]; (2001) 24 WAR 97, 108. Further, both parties in this appeal argued the issue of waiver on th…
Developments (WA) Pty Ltd v Whittle-Herbert
[2008] WASC 261

…Carr v J A Berriman Pty Ltd (1953) 89 CLR 327 Champtaloup v Thomas (1976) 2 NSWLR 264 Developments (WA) Pty Ltd v Price [2008] WASC 260 Donaldson v Bexton (2007) 1 Qd R 525 Kirk Contractors Pty Ltd v Lasnom Pty Ltd (Unreported, WASC, Library No 950262) Neate v Parfit [2006] WASC 121 New Zealand Shipping Co Ltd v Societe des…
Exceptional Sunrise P/L v. Jones & Anor
[2008] QSC 190

…ter the cut off date – whether that denied vendor the right of termination subsequently exercised Donaldson v Bexton [2007] 1 Qd R 525; [2006] QCA 559, cited Gange v Sullivan (1966) 116 CLR 418, considered COUNSEL: T J Bradley for the plaintiff M K Stunden for the defendants SOLICITORS: Holding Redlich for the pl…
Trupkovic v. Furrer
[2007] QSC 27 Para 1

…that the clause was one where the vendors had an equal interest in it. Reliance was placed on the Court of the Appeal decision of Donaldson v Bexton [2006] QCA 559 where there was extensive discussion of authority by Keane JA, who formed the majority with Jerrard JA, and PD McMurdo J in dissent.…
Bellmere Park Pty Ltd v Benson
[2007] QSC 11 Para 1

…With respect, those observations are apt here. Mr Harrison referred to Donaldson v Bexton [2006] QCA 559, a decision of the Court of Appeal of 22 December 2006, but that case concerned a rather different fact situation. The vendors had agreed to sell to the purchasers vacant land subject to a special condition th…

View all 10 citing cases →

Cases cited in this decision · 27 of 27 shown

Coverdale v West Coast Council
[2016] HCA 15 Para 1

…. [52] Charles Lodge Pty Ltd v Menahem was followed in Amber Holdings Aust Pty Ltd v Polona Pty Ltd [1982] 2 NSWLR 470 at 475; Toga Development No 10 Pty Ltd v Gibson (1973) 2 BPR 9260 at 9264; Vakele Pty Ltd v Assender (1989) 4 BPR 9591 at 9596, and Bedroff Pty Ltd v Rennie [2002] NSWSC 928 at [26] – [27].…
S.C.N. Pty Ltd v Smith
[2006] QCA 360 Para 1

…ted right to do so. [20](1974) 133 CLR 449 at 458; Sandra Investments Pty Ltd v Booth (1983) 153 CLR 153 at 158, 164. See also S.C.N. Pty Ltd v Smith [2006] QCA 360 at [21].…
Blue Moon Grill Pty Ltd v Yorkey's Knob Boating Club Inc
[2006] QCA 253 Para 1

…authorities do not support the contention advanced by the appellants. [11]See, for example, Blue Moon Grill Pty Ltd v Yorkey's Knob Boating Club Inc [2006] QCA 253 at [21]; Homburg Houtimport BV v Agrosin Private Ltd [2004] 1 AC 715 at 737.…
BNP Paribas v Pacific Carriers Ltd
[2005] NSWCA 72 Para 1

…interest in the term, as it ended their contractual obligation to sell to nominated purchasers who might be unable to complete. [1]See for example Pacific Carriers Pty Ltd v BNP Paribas (2004) 208 ALR 213 at 221; [2004] HCA 35; S585 of 2003, 5 August 2004, Equuscorp v Glengallan (2004) 211 ALR 101 at 108; (2004) 218 CLR 471; [2004] HCA 55; B9…
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd
[2004] HCA 55 Para 1

…aribas (2004) 208 ALR 213 at 221; [2004] HCA 35; S585 of 2003, 5 August 2004, Equuscorp v Glengallan (2004) 211 ALR 101 at 108; (2004) 218 CLR 471; [2004] HCA 55; B93 of 2003, B94 of 2003, B95 of 2003, B96 of 2003, B97 of 2003, B98 of 2003, 16 November 2004, and Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 21…
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd
[2004] HCA 52 Para 1

…f 2003, B97 of 2003, B98 of 2003, 16 November 2004, and Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 211 ALR 342 at 351-352; (2004) 219 CLR 165; [2004] HCA 52; S53 of 2004, 11 November 2004.…
Pacific Carriers Ltd v BNP Paribas
[2004] HCA 35 Para 1

…sell to nominated purchasers who might be unable to complete. [1]See for example Pacific Carriers Pty Ltd v BNP Paribas (2004) 208 ALR 213 at 221; [2004] HCA 35; S585 of 2003, 5 August 2004, Equuscorp v Glengallan (2004) 211 ALR 101 at 108; (2004) 218 CLR 471; [2004] HCA 55; B93 of 2003, B94 of 2003, B95 of 200…
Barooga Projects (Investments) Pty Ltd v Duncan
[2004] QCA 149 Para 1

…ent of the condition, and the point was not discussed in the judgments. Nor was it discussed in a note of the case in (2005) 79 ALJ 19. [82][2004] QCA 149.…
Woodward v Nagel
[2003] QSC 100 Para 1

…if the purchaser indicates a wish to complete the contract,[56] before the vendor's right of termination is exercised. [56]In Woodward & Anor v Nagel [2003] QSC 100 at [3] the point was conceded.…
Bedroff Pty Ltd v Rennie
[2002] NSWSC 928 Para 1

…Toga Development No 10 Pty Ltd v Gibson (1973) 2 BPR 9260 at 9264; Vakele Pty Ltd v Assender (1989) 4 BPR 9591 at 9596, and Bedroff Pty Ltd v Rennie [2002] NSWSC 928 at [26] – [27].…
Excel Quarries Pty Ltd v Payne
[1996] QCA 17

…f 2005, 13 July 2006, cited Charles Lodge Pty Ltd v Menahem [1966] VR 161, considered Equuscorp v Glengallan (2004) 218 CLR 471; [2004] HCA 55, cited Excel Quarries Pty Ltd v Payne (1996) Q ConvR 54-473, cited Gange v Sullivan (1966) 116 CLR 418, considered Havenbar Pty Ltd v Butterfield (1974) 133 CLR 449, cited Hawksley v Outram [189…
Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW)
[1993] HCA 27

…Houtimport BV v Agrosin Private Ltd [2004] 1 AC 715, cited Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1992 – 1993) 182 CLR 26, cited Koikas v Green Park Construction Pty Ltd [1970] VR 142, cited Meehan v Jones (1981-1982) 149 CLR 571, cited Pacific Carriers Pty Ltd v BNP Parib…
Sandra Investments Pty ltd v Booth
[1983] HCA 46 Para 1

…re the defendant purported to terminate it pursuant to his admitted right to do so. [20](1974) 133 CLR 449 at 458; Sandra Investments Pty Ltd v Booth (1983) 153 CLR 153 at 158, 164. See also S.C.N. Pty Ltd v Smith [2006] QCA 360 at [21].…
Perri v Coolangatta Investments Pty Ltd
[1982] HCA 29 Para 1

…joint judgment in that case.[4] That view of Suttor v Gundowda is supported by the remarks of Gibbs CJ in Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537, where His Honour wrote:…
Brien v Dwyer
[1978] HCA 50

…so construe provisions of this kind – see Maynard ((1926) 37 CLR 529); Suttor v. Gundowda Pty. Ltd. ((1950) 81 CLR 418, at p 443); Brien v. Dwyer ((1978) 141 CLR 378, at pp 393, 397-398). Moreover, it is clear enough that the condition was inserted for the protection of the purchasers, to guard against the possibili…
Sargent v ASL Developments Ltd
[1974] HCA 40

…Pty Ltd v Smith [2006] QCA 360; Appeal No 6215 of 2006, 22 September 2006, cited Sandra Investments Pty Ltd v Booth (1983) 153 CLR 153, considered Sargent v ASL Developments Pty Ltd (1974) 131 CLR 634, cited Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, considered Toga Development No 10 Pty Ltd v Gibson (1973) 2 BPR 9260, considered Toll (…
Havenbar Pty Ltd v Butterfield
[1974] HCA 24

…(2004) 218 CLR 471; [2004] HCA 55, cited Excel Quarries Pty Ltd v Payne (1996) Q ConvR 54-473, cited Gange v Sullivan (1966) 116 CLR 418, considered Havenbar Pty Ltd v Butterfield (1974) 133 CLR 449, cited Hawksley v Outram [1892] 3 Ch 359, cited Homburg Houtimport BV v Agrosin Private Ltd [2004] 1 AC 715, cited Immer (No 145) Pty Ltd…
Brown v Heffer
[1967] HCA 40

…t pp 430, 443) neither party is entitled to a decree of specific performance of their respective obligations to complete the sale ( Brown v. Heffer (1967) 116 CLR 344, at p 350) and the purchasers have no equitable interest in the property which is the subject of the contract ( McWilliam v. McWilliams Wines Pty Ltd (…
Gange v Sullivan
[1966] HCA 55 Para 1

…follows from the decisions of the High Court in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, particularly at 441, and in Gange v Sullivan (1966) 116 CLR 418 at 442.…
Mehmet v Benson
[1965] HCA 18

…"I agree with the learned trial judge that the special condition was included in the contract for the benefit of the appellant. There is no suggestion that the respondent was retaining any interest in the subject land, or that he had any interest in any other land, or in any other respect which woul…
McWilliam v McWilliams Wines Pty Ltd
[1964] HCA 6

…t p 350) and the purchasers have no equitable interest in the property which is the subject of the contract ( McWilliam v. McWilliams Wines Pty Ltd (1964) 114 CLR 656). Assuming that the contract remained on foot until 27 February 1979, when the purchasers purportedly waived the benefit of the stipulation, the obliga…
Suttor v Gundowda Pty Ltd
[1950] HCA 35

…"I agree with the learned trial judge that the special condition was included in the contract for the benefit of the appellant. There is no suggestion that the respondent was retaining any interest in the subject land, or that he had any interest in any other land, or in any other respect which woul…
Maynard v Goode
[1926] HCA 4

…ions of one or both parties on fulfilment of the condition and the tradition in this Court is to so construe provisions of this kind – see Maynard ((1926) 37 CLR 529); Suttor v. Gundowda Pty. Ltd. ((1950) 81 CLR 418, at p 443); Brien v. Dwyer ((1978) 141 CLR 378, at pp 393, 397-398). Moreover, it is clear enough tha…
Meehan v Jones
[1982] HCA 52

…ralia Property Trust (NSW) (1992 – 1993) 182 CLR 26, cited Koikas v Green Park Construction Pty Ltd [1970] VR 142, cited Meehan v Jones (1981-1982) 149 CLR 571, cited Pacific Carriers Pty Ltd v BNP Paribas (2004) 208 ALR 213; [2004] HCA 35, cited Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537, cons…
[2004] 1 AC 715
[2004] 1 AC 715 Para 1

…s. [11]See, for example, Blue Moon Grill Pty Ltd v Yorkey's Knob Boating Club Inc [2006] QCA 253 at [21]; Homburg Houtimport BV v Agrosin Private Ltd [2004] 1 AC 715 at 737.…
[1919] AC 1
[1919] AC 1

…he event to happen or not to happen, decisions of the highest authority ( New Zealand Shipping Co Ltd v Societe des Ateliers et Chantiers de France , [1919] AC 1; [1918-19] All ER Rep 562; Quesnel Forks Gold Mining Co Ltd v Ward , [1920] AC 222, and Suttor v Gundowda Pty Ltd, supra ) establish that the word 'v…
[1920] AC 222
[1920] AC 222

…land Shipping Co Ltd v Societe des Ateliers et Chantiers de France , [1919] AC 1; [1918-19] All ER Rep 562; Quesnel Forks Gold Mining Co Ltd v Ward , [1920] AC 222, and Suttor v Gundowda Pty Ltd, supra ) establish that the word 'void', when used in a condition of this kind in a contract, is, as a matter of const…

Legislation cited in this decision · 1

Conveyancing Act 1919 (ACT)
1 mention

CITATION:	Donaldson & Donaldson v Bexton & Bexton [2006] QCA 559
PARTIES:	KYLIE JEAN DONALDSON (first plaintiff/first appellant) SHANE LESLIE DONALDSON (second plaintiff/second appellant) v CAROLINE SUSAN BEXTON (first defendant/first respondent) MARK WILLIAM BEXTON (second defendant/second respondent)
FILE NO/S:	Appeal No 4703 of 2006 SC No 2074 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	20 October 2006
JUDGES:	Jerrard and Keane JJA and Philip McMurdo J Separate reasons for judgment of each member of the Court, Jerrard and Keane JJA concurring as to the orders made, Philip McMurdo J dissenting
ORDER:	Appeal dismissed1. Appellants to pay the respondents' costs of the appeal 2.
CATCHWORDS:	CONTRACTS - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - OTHER MATTERS - contract for the sale of land - respondent vendor and appellant purchaser entered into written contract - special condition made contract subject to the appellants selling other land owned by them within 30 days - "failing which this contract will be at an end" - respondents asserted that contract was at an end by reason of failure of special condition - appellants adduced evidence that they had waived benefit of special condition - common ground that special condition rendered contract voidable by either party - appellants contended special condition was provision for their benefit and thus could be waived by them and was waived - respondents contended that non-compliance with special condition made contract voidable by them and that they had lawfully terminated contract - appellants commenced action for specific performance - whether right of termination which arose in respondents upon non-fulfilment of special condition was lost because appellants indicated to respondents that appellants wished to complete contract before respondents purported to terminate contract Amber Holdings (Aust) Pty Ltd v Polona Pty Ltd [1982] 2 NSWLR 470, considered Associated Developers (Aust) Pty Ltd v Allied and General Pty Ltd (1994) Q ConvR 54-458, cited Barooga Projects (Investments) Pty Ltd v Duncan [2004] QCA 149; (2004) Q ConvR 54-603, considered Bedroff Pty Ltd v Rennie [2002] NSWSC 928; No 4323 of 2002, 22 October 2002, considered Blue Moon Grill P/L v Yorkey's Knob Boating Club Inc [2006] QCA 253; Appeal No 7754 of 2005, 13 July 2006, cited Charles Lodge Pty Ltd v Menahem [1966] VR 161, considered Equuscorp v Glengallan (2004) 218 CLR 471; [2004] HCA 55, cited Excel Quarries Pty Ltd v Payne (1996) Q ConvR 54-473, cited Gange v Sullivan (1966) 116 CLR 418, considered Havenbar Pty Ltd v Butterfield (1974) 133 CLR 449, cited Hawksley v Outram [1892] 3 Ch 359, cited Homburg Houtimport BV v Agrosin Private Ltd [2004] 1 AC 715, cited Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1992 – 1993) 182 CLR 26, cited Koikas v Green Park Construction Pty Ltd [1970] VR 142, cited Meehan v Jones