Duff v Blinco - [2006] QCA 497

SUPREME COURT OF QUEENSLAND

CITATION:

Duff v Blinco & Anor [2006] QCA 497

PARTIES:

MICHAEL GAVAN DUFF
(plaintiff/respondent)
v
JEFFREY LIONEL BLINCO
MAVIS JEAN BLINCO
(defendants/applicants)

FILE NO/S:

Appeal No 5121 of 2006
DC No 93 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Dalby

DELIVERED ON:

1 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

30 October 2006

JUDGES:

McMurdo P, Keane JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for leave to appeal allowed1.

Appeal dismissed2.

Defendants to pay the plaintiff's costs of the application and of the appeal

3.

CATCHWORDS:

GENERAL CONTRACTUAL PRINCIPLES - OFFER AND ACCEPTANCE - AGREEMENTS CONTEMPLATING EXECUTION OF FORMAL DOCUMENT - whether concluded contract - whether primary judge erred in giving clause contractual effect

GENERAL CONTRACTUAL PRINCIPLES - OFFER AND ACCEPTANCE - AGREEMENTS CONTEMPLATING EXECUTION OF FORMAL DOCUMENT - whether reference in clause is a sufficient note or memorandum so as to satisfy the requirements of s 59 Property Law Act 1974 (Qld) - whether the agreement is a contract for the sale or other disposition of the interest in land within the meaning of s 59 Property Law Act 1974 (Qld)

Property Law Act 1974 (Qld), s 11, s 59

Allen & Sons v Kirk [1927] St R Qd 85, considered
Baloglow v Konstantinidis & Ors [2001] NSWCA 451, cited
Connolly v Noone and Cairns Timber Ltd [1912] St R Qd 70, considered
Elias v George Sahely & Co (Barbados) Ltd [1983] 1 AC 646, cited
Ellison v Vukicevic (1986) 7 NSWLR 104, cited
FCA v Commissioner of Stamp Duties [1981] Qd R 493, cited
Grimwade v FCT (1949) 78 CLR 199, cited
Littlewoods Mail Order Stores Ltd v IRC [1963] AC 135, cited
One Stop Lighting (Queensland) Pty Ltd v Lifestyle Property Developments Pty Ltd (1999) Q ConvR 54-527, cited
Ord Forrest Pty Ltd v FCT (1974) 130 CLR 124, cited
Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1, cited
S.C.N. Pty Ltd v Smith [2006] QCA 360; Appeal No 6215 of 2006, 22 September 2006, cited
Theodore v Mistford Pty Ltd [2003] QCA 580; Appeal No 11225 of 2002, 24 December 2003, cited
Theodore v Mistford Pty Ltd (2005) 221 CLR 612, followed

COUNSEL:

S A Lynch for the plaintiff/respondent
A J Greinke for the defendants/applicants

SOLICITORS:

Michael Mason for the plaintiff/respondent
Shannon Donaldson Province Lawyers for the defendants/applicants

McMURDO P: I agree with Keane JA's reasons for granting the application for leave to appeal but dismissing the appeal with costs.

KEANE JA:
The plaintiff brought an action to recover money alleged to be payable to him by the defendants under a contract between the parties. Pursuant to

r 483 of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR"), a preliminary question - whether the defendants were under…

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 Duff v Blinco

Details

AGLC: Duff v Blinco [2006] QCA 497
Case: [2006] QCA 497
Decision Date: 1 December 2006

CaseChat Overview and Summary

Duff, the appellant, initiated proceedings against Blinco, the respondent, in the Supreme Court of Queensland. The dispute centred on the existence of a binding contract concerning the sale of a parcel of land, and whether certain terms in an agreement between the parties constituted a concluded contract. The case proceeded to the Court of Appeal, which reviewed the primary judge's determination on the contractual obligations and the applicability of statutory requirements.

The legal issues before the Court of Appeal involved the interpretation of contractual agreements that anticipated the execution of formal documents. The Court had to determine whether a concluded contract existed and whether the primary judge erred in enforcing a specific clause. Additionally, the Court needed to establish whether the reference in a particular clause sufficed as a note or memorandum under section 59 of the Property Law Act 1974 (Qld) and whether the agreement constituted a contract for the sale or disposition of an interest in land.

The Court of Appeal examined the evidence and arguments presented and concluded that the primary judge did not err in finding that the parties had entered into a binding contract. The Court held that the reference in the clause did not satisfy the statutory requirements under section 59 of the Property Law Act 1974 (Qld) as it did not constitute a sufficient note or memorandum. Consequently, the agreement did not qualify as a contract for the sale or other disposition of an interest in land. The Court dismissed the appeal and ordered the defendants to pay the plaintiff's costs of the application and the appeal.

Orders

Orders of the court

Application for leave to appeal allowed1.

Appeal dismissed2.

Defendants to pay the plaintiff's costs of the application and 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.

CITATION:	Duff v Blinco & Anor [2006] QCA 497
PARTIES:	MICHAEL GAVAN DUFF (plaintiff/respondent) v JEFFREY LIONEL BLINCO MAVIS JEAN BLINCO (defendants/applicants)
FILE NO/S:	Appeal No 5121 of 2006 DC No 93 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Dalby
DELIVERED ON:	1 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	30 October 2006
JUDGES:	McMurdo P, Keane JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for leave to appeal allowed1. Appeal dismissed2. Defendants to pay the plaintiff's costs of the application and of the appeal 3.
CATCHWORDS:	GENERAL CONTRACTUAL PRINCIPLES - OFFER AND ACCEPTANCE - AGREEMENTS CONTEMPLATING EXECUTION OF FORMAL DOCUMENT - whether concluded contract - whether primary judge erred in giving clause contractual effect GENERAL CONTRACTUAL PRINCIPLES - OFFER AND ACCEPTANCE - AGREEMENTS CONTEMPLATING EXECUTION OF FORMAL DOCUMENT - whether reference in clause is a sufficient note or memorandum so as to satisfy the requirements of s 59 Property Law Act 1974 (Qld) - whether the agreement is a contract for the sale or other disposition of the interest in land within the meaning of s 59 Property Law Act 1974 (Qld) Property Law Act 1974 (Qld), s 11, s 59 Allen & Sons v Kirk [1927] St R Qd 85, considered Baloglow v Konstantinidis & Ors [2001] NSWCA 451, cited Connolly v Noone and Cairns Timber Ltd [1912] St R Qd 70, considered Elias v George Sahely & Co (Barbados) Ltd [1983] 1 AC 646, cited Ellison v Vukicevic (1986) 7 NSWLR 104, cited FCA v Commissioner of Stamp Duties [1981] Qd R 493, cited Grimwade v FCT (1949) 78 CLR 199, cited Littlewoods Mail Order Stores Ltd v IRC [1963] AC 135, cited One Stop Lighting (Queensland) Pty Ltd v Lifestyle Property Developments Pty Ltd (1999) Q ConvR 54-527, cited Ord Forrest Pty Ltd v FCT (1974) 130 CLR 124, cited Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1, cited S.C.N. Pty Ltd v Smith [2006] QCA 360; Appeal No 6215 of 2006, 22 September 2006, cited Theodore v Mistford Pty Ltd [2003] QCA 580; Appeal No 11225 of 2002, 24 December 2003, cited Theodore v Mistford Pty Ltd (2005) 221 CLR 612, followed
COUNSEL:	S A Lynch for the plaintiff/respondent A J Greinke for the defendants/applicants
SOLICITORS:	Michael Mason for the plaintiff/respondent Shannon Donaldson Province Lawyers for the defendants/applicants