Dunworth v Mirvac Qld Pty Ltd - [2011] QCA 200

SUPREME COURT OF QUEENSLAND

CITATION:

Dunworth v Mirvac Qld Pty Ltd [2011] QCA 200

PARTIES:

MARIS ANNE DUNWORTH
(appellant/cross-respondent)
v
MIRVAC QUEENSLAND PTY LIMITED
ACN 060 411 207
(respondent/cross-appellant)

FILE NO/S:

Appeal No 1363 of 2011
SC No 4514 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2011

JUDGES:

Chief Justice, McMurdo and Dalton JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    That the appeal be allowed, the orders and directions made on 7 February 2011 be set aside, and the order for specific performance made on 10 December 2010 also be set aside;

2.    That there be a declaration that on or about 28 January 2011 the appellant validly rescinded her contract with the respondent dated 25 June 2007;

3.    That the respondent’s cross appeal be dismissed; and

4.    That the respondent pay the appellant’s costs of the appeal, and the hearing in the Trial Division, to be assessed on the standard basis.

CATCHWORDS:

CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – PURCHASER’S REMEDIES – RESCISSION – OTHER CASES – where the appellant agreed to purchase a residential apartment – where the original completion date was 12 May 2009 – where the appellant had contended she was induced to enter the contract by false, misleading and deceptive representations and had obtained an injunction on 11 May 2009 restraining the respondent from terminating and the respondent had counter-claimed for specific performance – where the appellant’s claim was dismissed on 10 December 2010 and an order for specific performance was made with a completion date of 8 February 2011 – where the apartment was flooded and damaged on 13 January 2011 so as to be unfit for occupation as a dwelling – where on 24 January 2011 the respondent made an offer to complete necessary restoration work and delay completion by four months – where on 28 January 2011 the appellant purported to exercise her statutory right under s 64 Property Law Act 1974 (Qld) to rescind the contract – where on 3 February 2011 the appellant applied for a declaration that the contract had been validly rescinded and for dissolution of the order for specific performance – where the trial judge extended the time for completion to 8 June 2011 and made orders to facilitate trial of the issues raised – whether the trial judge erred in failing to determine certain questions of law – whether the right of rescission under s 64 Property Law Act 1974 (Qld) could subsist beyond the contractually appointed date for completion in circumstances where there was a subsequent order for specific performance – whether the apartment must have been uninhabitable as at the date of rescission – whether the respondent’s capacity to restore the apartment was relevant

EQUITY – EQUITABLE REMEDIES – SPECIFIC PERFORMANCE – whether rescission of a contract…

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.

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Details

Case: [2011] QCA 200
Decision Date: 19 August 2011

CaseChat Overview and Summary

The case of Dunworth v Mirvac Qld Pty Ltd concerns a dispute between the appellant, who agreed to purchase a residential apartment, and the respondent, the seller. The original completion date was 12 May 2009, but the appellant sought to rescind the contract on 28 January 2011, alleging she was induced to enter the contract by false, misleading and deceptive representations. The respondent had counter-claimed for specific performance, which was granted with a completion date of 8 February 2011. The apartment was subsequently flooded and damaged on 13 January 2011, rendering it unfit for occupation as a dwelling. The respondent offered to complete necessary restoration work and delay completion by four months. The appellant purported to exercise her statutory right to rescind the contract under s 64 of the Property Law Act 1974 (Qld) on 28 January 2011, and applied for a declaration that the contract had been validly rescinded and for dissolution of the order for specific performance.

The primary legal issues the court had to decide were whether the trial judge erred in failing to determine certain questions of law, whether the right of rescission under s 64 of the Property Law Act 1974 (Qld) could subsist beyond the contractually appointed date for completion in circumstances where there was a subsequent order for specific performance, whether the apartment must have been uninhabitable as at the date of rescission, and whether the respondent’s capacity to restore the apartment was relevant. The court also needed to determine whether rescission of a contract after an order for specific performance is made requires the leave of the court, whether such rescission requires vacation of that order, and whether a declaration should be made that the contract was validly rescinded.

The court found that the trial judge erred in failing to determine certain questions of law. The court held that the right of rescission under s 64 of the Property Law Act 1974 (Qld) could subsist beyond the contractually appointed date for completion in circumstances where there was a subsequent order for specific performance. The court further held that the apartment did not need to be uninhabitable as at the date of rescission, and that the respondent’s capacity to restore the apartment was relevant. The court held that rescission of a contract after an order for specific performance is made does not require the leave of the court, nor does it require vacation of that order. The court also held that a declaration should be made that the contract was validly rescinded.

The orders of the court were that the appeal be allowed, the orders and directions made on 7 February 2011 be set aside, and the order for specific performance made on 10 December 2010 also be set aside. The court declared that on or about 28 January 2011 the appellant validly rescinded her contract with the respondent dated 25 June 2007. The respondent’s cross appeal was dismissed, and the respondent was ordered to pay the appellant’s costs of the appeal and the hearing in the Trial Division, to be assessed on the standard basis.

Orders

Orders of the court

1. That the appeal be allowed, the orders and directions made on 7 February 2011 be set aside, and the order for specific performance made on 10 December 2010 also be set aside;

2. That there be a declaration that on or about 28 January 2011 the appellant validly rescinded her contract with the respondent dated 25 June 2007;

3. That the respondent’s cross appeal be dismissed; and

4. That the respondent pay the appellant’s costs of the appeal, and the hearing in the Trial Division, to be assessed on the standard basis.

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:	Dunworth v Mirvac Qld Pty Ltd [2011] QCA 200
PARTIES:	MARIS ANNE DUNWORTH (appellant/cross-respondent) v MIRVAC QUEENSLAND PTY LIMITED ACN 060 411 207 (respondent/cross-appellant)
FILE NO/S:	Appeal No 1363 of 2011 SC No 4514 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	25 July 2011
JUDGES:	Chief Justice, McMurdo and Dalton JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. That the appeal be allowed, the orders and directions made on 7 February 2011 be set aside, and the order for specific performance made on 10 December 2010 also be set aside; 2. That there be a declaration that on or about 28 January 2011 the appellant validly rescinded her contract with the respondent dated 25 June 2007; 3. That the respondent’s cross appeal be dismissed; and 4. That the respondent pay the appellant’s costs of the appeal, and the hearing in the Trial Division, to be assessed on the standard basis.
CATCHWORDS:	CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – PURCHASER’S REMEDIES – RESCISSION – OTHER CASES – where the appellant agreed to purchase a residential apartment – where the original completion date was 12 May 2009 – where the appellant had contended she was induced to enter the contract by false, misleading and deceptive representations and had obtained an injunction on 11 May 2009 restraining the respondent from terminating and the respondent had counter-claimed for specific performance – where the appellant’s claim was dismissed on 10 December 2010 and an order for specific performance was made with a completion date of 8 February 2011 – where the apartment was flooded and damaged on 13 January 2011 so as to be unfit for occupation as a dwelling – where on 24 January 2011 the respondent made an offer to complete necessary restoration work and delay completion by four months – where on 28 January 2011 the appellant purported to exercise her statutory right under s 64 Property Law Act 1974 (Qld) to rescind the contract – where on 3 February 2011 the appellant applied for a declaration that the contract had been validly rescinded and for dissolution of the order for specific performance – where the trial judge extended the time for completion to 8 June 2011 and made orders to facilitate trial of the issues raised – whether the trial judge erred in failing to determine certain questions of law – whether the right of rescission under s 64 Property Law Act 1974 (Qld) could subsist beyond the contractually appointed date for completion in circumstances where there was a subsequent order for specific performance – whether the apartment must have been uninhabitable as at the date of rescission – whether the respondent’s capacity to restore the apartment was relevant EQUITY – EQUITABLE REMEDIES – SPECIFIC PERFORMANCE – whether rescission of a contract…