Fairborne Pty Ltd v Strata Store Noosa Pty Ltd - [2009] QSC 250

SUPREME COURT OF QUEENSLAND

CITATION:

Fairborne Pty Ltd v Strata Store Noosa Pty Ltd [2009] QSC 250

PARTIES:

FAIRBORNE PTY LTD ACN 074 190 864
(applicant)
v
STRATA STORE NOOSA PTY LTD ACN 130 223 460
(first respondent)

GAVIN RICHARD BROWN
(second respondent)

ANTHONY MICHAEL MULLINS
(third respondent)

ERIC JOHN VAN WAAIJENBURG
(fourth respondent)

FILE NO:

5824/09

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

28 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

7 August 2009

JUDGE:

Daubney J

ORDER:

There will be an order against the first respondent for specific performance of the contract of sale.I would dismiss the application against each of the second, third and fourth respondents; and [1]

I will hear from counsel as to an appropriate form of order, and as to costs. [2]

CATCHWORDS:

CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – VENDOR’S REMEDIES – SPECIFIC PERFORMANCE – where applicant as vendor agreed to sell to the first respondent as purchaser a plot of land – where the contract’s special conditions provided for the purchaser on execution of the contract to apply to the local authority for reconfiguration of the existing lot and an adjoining lot – where the vendor’s solicitors wrote to the purchaser’s solicitors advising that the vendor affirmed the contract – where the vendor contended it was ready, willing and able to settle the contract – where the applicant vendor sought an order for specific performance of the contract against the first respondent purchaser – whether the applicant had failed to comply with a requirement in a special condition of the contract – whether the first respondent had validly terminated the contract in reliance on an alleged failure by the applicant to comply with a special condition of the contract – whether damages were an adequate remedy – whether requiring the first respondent to perform the contract would impose undue hardship on the first respondent

GUARANTEE AND INDEMNITY – THE CONTRACT OF GUARANTEE – CONSTRUCTION AND EFFECT – GENERALLY – where the purchaser covenanted to procure execution of a specified form of guarantee by the directors of the purchaser – where that guarantee was executed by each of the second, third and fourth respondents – where the applicant claimed for an order that the second to fourth respondents perform the contract of guarantee – where the applicant claimed in the alternative an injunction requiring the second to fourth respondents to perform all obligations of the first respondent under the contract in accordance with the guarantee – whether the applicant’s claim for relief against the guarantors by way of orders in the nature of specific performance or mandatory injunction was premature

Land Sales Act 1984 (Qld)

Boyarsky v Taylor [2008] NSWSC 1415, cited

Iambic Pty Ltd v Northwind Holdings Pty Ltd [2001] WASC 44, cited

JC Williamson Ltd v Lukey (1931) 45 CLR 282, cited

Pasedina (Holdings) Pty Ltd v Khouri (1977) BPR 9460, applied

Patel v Ali [1984] 1 Ch…

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: [2009] QSC 250
Decision Date: 28 August 2009

CaseChat Overview and Summary

Fairborne Pty Ltd sought specific performance of a contract for the sale of a plot of land against Strata Store Noosa Pty Ltd. The dispute also involved the directors of Strata Store Noosa Pty Ltd, who had executed a guarantee of the purchaser's obligations under the contract. Fairborne claimed that Strata Store Noosa Pty Ltd had wrongfully terminated the contract and that it was ready, willing and able to perform the contract. The court was required to decide whether Fairborne had complied with the special conditions of the contract, whether Strata Store Noosa Pty Ltd had valid grounds to terminate the contract, and whether damages would be an adequate remedy for Fairborne.

The court held that Fairborne had not failed to comply with the special condition requiring the purchaser to apply to the local authority for reconfiguration of the existing lot and an adjoining lot. The court also found that Strata Store Noosa Pty Ltd had no valid grounds to terminate the contract and that damages would not be an adequate remedy for Fairborne. The court held that requiring Strata Store Noosa Pty Ltd to perform the contract would not impose undue hardship on it.

The court ordered that Strata Store Noosa Pty Ltd must specifically perform the contract of sale. The court dismissed Fairborne's application against the guarantors of the contract, holding that any claim for relief against them was premature. The court directed the parties to confer and advise on an appropriate form of order and on costs.

Orders

Orders of the court

There will be an order against the first respondent for specific performance of the contract of sale.I would dismiss the application against each of the second, third and fourth respondents; and [1]

I will hear from counsel as to an appropriate form of order, and as to costs. [2]

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:	Fairborne Pty Ltd v Strata Store Noosa Pty Ltd [2009] QSC 250
PARTIES:	FAIRBORNE PTY LTD ACN 074 190 864 (applicant) v STRATA STORE NOOSA PTY LTD ACN 130 223 460 (first respondent) GAVIN RICHARD BROWN (second respondent) ANTHONY MICHAEL MULLINS (third respondent) ERIC JOHN VAN WAAIJENBURG (fourth respondent)
FILE NO:	5824/09
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	28 August 2009
DELIVERED AT:	Brisbane
HEARING DATE:	7 August 2009
JUDGE:	Daubney J
ORDER:	There will be an order against the first respondent for specific performance of the contract of sale.I would dismiss the application against each of the second, third and fourth respondents; and [1] I will hear from counsel as to an appropriate form of order, and as to costs. [2]
CATCHWORDS:	CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – VENDOR’S REMEDIES – SPECIFIC PERFORMANCE – where applicant as vendor agreed to sell to the first respondent as purchaser a plot of land – where the contract’s special conditions provided for the purchaser on execution of the contract to apply to the local authority for reconfiguration of the existing lot and an adjoining lot – where the vendor’s solicitors wrote to the purchaser’s solicitors advising that the vendor affirmed the contract – where the vendor contended it was ready, willing and able to settle the contract – where the applicant vendor sought an order for specific performance of the contract against the first respondent purchaser – whether the applicant had failed to comply with a requirement in a special condition of the contract – whether the first respondent had validly terminated the contract in reliance on an alleged failure by the applicant to comply with a special condition of the contract – whether damages were an adequate remedy – whether requiring the first respondent to perform the contract would impose undue hardship on the first respondent GUARANTEE AND INDEMNITY – THE CONTRACT OF GUARANTEE – CONSTRUCTION AND EFFECT – GENERALLY – where the purchaser covenanted to procure execution of a specified form of guarantee by the directors of the purchaser – where that guarantee was executed by each of the second, third and fourth respondents – where the applicant claimed for an order that the second to fourth respondents perform the contract of guarantee – where the applicant claimed in the alternative an injunction requiring the second to fourth respondents to perform all obligations of the first respondent under the contract in accordance with the guarantee – whether the applicant’s claim for relief against the guarantors by way of orders in the nature of specific performance or mandatory injunction was premature Land Sales Act 1984 (Qld) Boyarsky v Taylor [2008] NSWSC 1415, cited Iambic Pty Ltd v Northwind Holdings Pty Ltd [2001] WASC 44, cited JC Williamson Ltd v Lukey (1931) 45 CLR 282, cited Pasedina (Holdings) Pty Ltd v Khouri (1977) BPR 9460, applied Patel v Ali [1984] 1 Ch…