Evenden & Anor v Millwood Rise Developments Pty Ltd

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Evenden & Anor v Millwood Rise Developments Pty Ltd [2023] QCAT 512

PARTIES:

MARK ALFRED EVENDEN
ELIZABETH EVENDEN

(applicants)

v

MILLWOOD RISE DEVELOPMENTS PTY LTD

(respondent)

APPLICATION NO/S:

Q325/23

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

18 December 2023

HEARING DATE:

17 October 2023

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Scott-Mackenzie

ORDER:

The respondent pay to the applicants $19,718.41 within 21 days of this order

CATCHWORDS:

MINOR CIVIL DIPUTE – contract for houses and residential land – deposit paid – offer of new contract at higher price – options identified – whether contract terminated by mutual agreement – whether contract repudiated

Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

Koompahtoo Local Aboriginal Council v Sanpine Pty Ltd (2007) 233 CLR115

Shevill v Builders Licensing Board (1982) 149 CLR 620

APPEARANCES & REPRESENTATION:
Applicants:	Self-represented
Respondent:	Mr Watson, Millwood Rise Developments Pty Ltd

REASONS FOR DECISION

Application

1. The applicants, on 17 March 2023, made application to the Tribunal for payment to them by the respondent of $17,950.00, together with $329.17 interest and $367.00 the fee on filing the application (application).

Uncontroversial facts

1. The uncontroversial facts may be summarised in the following terms.

2. On 22 October 2021 the parties entered into a contract for houses and residential land under which the respondent agreed to sell to the applicants and the applicants agreed to buy from the respondent proposed lot 48, Millwood Rise, 41 Glenbrook Drive, Nambour for $359,000.00 payable by an initial deposit of $1,000.00 and the balance of the deposit of $16,950.00 on satisfaction or waiver of a finance condition (contract). The applicants paid to the respondent both the initial deposit and the balance of the deposit.

3. On 9 November 2022 the applicants received from Mr Simon Ewing, a sales consultant for CFMG Residential Communities, on behalf of the respondent, an email inquiring whether they had received the letter attached to the email (Mr Ewing’s first email).  They had not.

4. The letter is from the general manager of CFMG Residential Communities, Mr Andrew Thomson.  It is addressed to the applicants and dated 24 October 2022 (24 October 2022 letter).  The opening paragraph of the letter reads:

   As you may be aware, our progress with the physical execution of the Millwood Rise Estate at Nambour has been delayed as a consequence of matters beyond our control.

5. The letter outlines some of the reasons for the delay and states the building work will commence on 10 October 2022.  Then, it is said:

   Because of the significant delays and cost pressures we will act in our financial best interest and in turn those of our lenders when deciding whether to act upon the statutory 18 month period.

   To provide you with a greater level of certainty and as a show of good faith we will enter into a fresh contract with you for the sale and purchase of lot 48 at Millwood Rise at a purchase price of…