Exceptional Sunrise P/L v. Jones & Anor - [2008] QSC 190

SUPREME COURT OF QUEENSLAND

CITATION:

Exceptional Sunrise P/L v Jones & Anor [2008] QSC 190

PARTIES:

EXCEPTIONAL SUNRISE PTY LTD ACN 093 828 785
(plaintiff)
v
DAVID FRANCIS JONES and BETTY NEVA JONES

(defendants)

FILE NO/S:

BS No 9155 of 2007

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2008

JUDGE:

de Jersey CJ

ORDERS:

1. Dismiss the originating application filed 12 October 2007;
2. Declare that the defendants lawfully terminated their contract with the plaintiff dated 17 May 2004 at or about 8:32 am on 3 September 2007;
3. Order that caveat number 710974374 in respect of lot 1 on registered plan 94961, County of Stanley, Parish of Burpengary, title reference 16514032, be removed;

4. Order that the plaintiff pay the defendants’ costs of and incidental to the proceeding as follows;

a) up to an including 12 March 2008, to be assessed on the standard basis, and

b) after 12 March 2008, to be assessed on the indemnity basis

Grant liberty to apply for variation of that costs order within seven days, should the plaintiff be so advised

5. Order that the operation of this judgment be stayed until 4pm on 2 September 2008 or until further earlier order

CATCHWORDS:

CONTRACT FOR SALE OF LAND – conditional on development approval – right of termination by purchaser on non-fulfilment, to be exercised by a particular time – not exercised – further right in vendor to terminate in that circumstance – purchaser purported to waive the condition, but after 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 plaintiff

Phillips & Lowes Solicitors for the defendants

de Jersey CJ: The plaintiff and the defendants entered into a contract in writing, dated 17 May 2004, providing for the defendants’ sale to the plaintiff of land comprising lot 1 in Delaney Road, Burpengary, for the sum of $900,000. The contract is in the form of the fifth edition of the Real Estate Institute of Queensland and Queensland Law Society “contract for houses and land”.

Special condition 3 rendered the contract subject to the plaintiff’s obtaining a development approval. That was not forthcoming. The defendants contend that they validly terminated the contract. The plaintiff contends that it had previously waived the benefit of the special condition, and that the contract remained on foot. The plaintiff lodged a caveat over the land. It seeks a declaration that it has an equitable interest in the land sufficient to support that caveat, and an order for the specific performance of the contract. The defendants seek a declaration that they lawfully terminated the contract, and an order for the removal of the caveat.

Contractual provisions

In its…

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: [2008] QSC 190
Decision Date: 26 August 2008

CaseChat Overview and Summary

Exceptional Sunrise P/L, a company, sought to enforce a contract for the sale of land against the Jones and another defendant. The dispute arose from a conditional contract where the sale was contingent on obtaining development approval. The purchaser, Exceptional Sunrise, failed to exercise its right of termination on the non-fulfilment of the condition within the specified timeframe. Subsequently, the vendor exercised its right to terminate the contract. The purchaser attempted to waive the condition after the termination deadline, arguing this action should prevent the vendor from terminating the contract.

The court had to determine whether the purchaser's late waiver of the condition nullified the vendor's right to terminate the contract. It also had to examine the timing and validity of the vendor's termination and the effect of the waiver on the contract. The primary issue was whether the purchaser's actions post the deadline could retrospectively affect the vendor's right to terminate.

The court held that the purchaser's attempt to waive the condition after the vendor's exercise of the right to terminate was ineffective. The purchaser's failure to exercise the termination right within the stipulated period meant the condition became irrelevant. The court found that the vendor's termination was valid and that the purchaser's actions post the termination date could not retroactively affect the contract's status. The purchaser's waiver did not alter the fact that the vendor had lawfully terminated the contract.

The court dismissed the originating application, declared the vendor's termination as lawful, ordered the removal of a caveat, and set the costs of the proceeding. The judgment's operation was stayed to allow the purchaser to seek a variation of the costs order if advised.

Orders

Orders of the court

1. Dismiss the originating application filed 12 October 2007;

2. Declare that the defendants lawfully terminated their contract with the plaintiff dated 17 May 2004 at or about 8:32 am on 3 September 2007;

3. Order that caveat number 710974374 in respect of lot 1 on registered plan 94961, County of Stanley, Parish of Burpengary, title reference 16514032, be removed;

4. Order that the plaintiff pay the defendants’ costs of and incidental to the proceeding as follows;

a) up to an including 12 March 2008, to be assessed on the standard basis, and

b) after 12 March 2008, to be assessed on the indemnity basis

Grant liberty to apply for variation of that costs order within seven days, should the plaintiff be so advised

5. Order that the operation of this judgment be stayed until 4pm on 2 September 2008 or until further earlier order

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:	Exceptional Sunrise P/L v Jones & Anor [2008] QSC 190
PARTIES:	EXCEPTIONAL SUNRISE PTY LTD ACN 093 828 785 (plaintiff) v DAVID FRANCIS JONES and BETTY NEVA JONES (defendants)
FILE NO/S:	BS No 9155 of 2007
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	21 August 2008
JUDGE:	de Jersey CJ
ORDERS:	1. Dismiss the originating application filed 12 October 2007; 2. Declare that the defendants lawfully terminated their contract with the plaintiff dated 17 May 2004 at or about 8:32 am on 3 September 2007; 3. Order that caveat number 710974374 in respect of lot 1 on registered plan 94961, County of Stanley, Parish of Burpengary, title reference 16514032, be removed; 4. Order that the plaintiff pay the defendants’ costs of and incidental to the proceeding as follows; a) up to an including 12 March 2008, to be assessed on the standard basis, and b) after 12 March 2008, to be assessed on the indemnity basis Grant liberty to apply for variation of that costs order within seven days, should the plaintiff be so advised 5. Order that the operation of this judgment be stayed until 4pm on 2 September 2008 or until further earlier order
CATCHWORDS:	CONTRACT FOR SALE OF LAND – conditional on development approval – right of termination by purchaser on non-fulfilment, to be exercised by a particular time – not exercised – further right in vendor to terminate in that circumstance – purchaser purported to waive the condition, but after 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 plaintiff Phillips & Lowes Solicitors for the defendants