Evans v Robcorp Pty Ltd

[2014] QSC 26

SUPREME COURT OF QUEENSLAND

CITATION:

Evans & Anor v Robcorp Pty Ltd & Anor [2014] QSC 26

PARTIES:

JOHN RAMSAY EVANS
(applicant)
ALISON MARY EVANS
(applicant)
v
ROBCORP PTY LTD AS TRUSTEE FOR THE ROBCORP TRUST
(first respondent)
ROBERT WILLIAM SCOTT
(second respondent)

FILE NO:

BS12076 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

13 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2014

JUDGE:

Peter Lyons J

ORDERS:

1.   The application for summary judgment is dismissed.

2.   The costs of the application are the respondents’ costs in the cause.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – SPECIFIC PERFORMANCE – RELEVANT CONSIDERATIONS AND DEFENCE MATTERS – HARDSHIP – INABILITY TO COMPLY WITH ORDER – where there was evidence that the respondent purchaser does not have the financial capacity to perform its obligation under the contract for the sale of land – where the applicant vendors seek summary judgment for specific performance of the contract – where the impecuniosity of the respondent arose subsequent to the contract – whether specific performance might be refused on the basis of hardship on the respondent, or on the basis that it could not comply with the order.

Boyarsky v Taylor [2008] NSWSC 1415, followed
Nicholas v Ingram [1958] NZLR 972, considered
Ready Construction Pty Ltd v Jenno [1984] 2 Qd R 78, considered

COUNSEL:

D de Jersey for the applicants
D Topp for the respondents

SOLICITORS:

Cooper Grace Ward for the applicants
Thompson McNichol for the respondents

1. PETER LYONS J: This is an application for summary judgment under section 70 of the Property Law Act 1974 (Qld). The summary nature of the application was recognised by Byrne SJA in Lindaning Pty Ltd (Receivers and Managers Appointed) v Dean Goodlock and Michael Gore as Trustees of the Gorelock Unit Trust and Dean Goodlock and Michael Gore [2011] QSC 266 at [21]-[22].

1. The precise test to be applied in determining whether or not summary judgment should be granted under section 70 was not the subject of submissions in the present case. The rules relating to applications for summary judgment under the Supreme Court Rules have changed since the section was first introduced. Whether that has any consequence for the present application is unclear but, in my view, does not matter for the determination of the present application.

1. The applicant is the vendor under a contract for the sale of certain land.  The contract was dated 9 November 2012.  The purchase price is $1,253,720.  A small deposit was paid, under the contract, in an amount of $10,000.  The contractual date for settlement was 30 September 2013.  The first respondent is the purchaser under the contract.  The second respondent executed a guarantee of the first defendant’s contractual obligations. 

1. It might be noted that the first respondent obtained a development approval for the land for the development of a 54 room motel on it.  The date of the approval is 27 September 2012. 

1. The first respondent did not perform its obligations to complete the contract on…