Fairmede Pty Ltd v Von Pein - [2004] QSC 220

SUPREME COURT OF QUEENSLAND

CITATION:

Fairmede Pty Ltd v Von Pein & Ors [2004] QSC 220

PARTIES:

FAIRMEDE PTY LTD ACN 101 832 562
(plaintiff)
v
GEORGE WILLIAM VON PEIN
(first defendant)
RUTH JOY KRONK
(second defendant)
PAUL CHRISTOPHER KRONK
(third defendant)
ERIC NELSON KRONK and HAZEL JANE KRONK
(fourth defendants)

FILE NO:

BS5686 of 2003

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

5 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

3-5, 8-10 March and 7 April 2004

JUDGE:

Mullins J

ORDER:

1. The plaintiff’s claim is dismissed.
2. It is declared that:
(a) Each of the four contracts of sale dated 18 March 2003 which are the subject of this proceeding were validly terminated by notice given on behalf of the defendants to the plaintiff dated 3 June 2003, because of a breach by the plaintiff of special condition 9(a) of each contract of sale;
(b) The deposits totalling the sum of $780,000 paid by the plaintiff pursuant to the said contracts of sale are forfeited to the defendants.

CATCHWORDS:

CONTRACT – SALE OF LAND – purchaser claims specific performance of contracts where vendor purported to terminate for failure to comply on the due date with a special condition - where time was of the essence – whether vendors or their agent made representations as to what the vendors would accept as compliance with the special condition and as to the granting of extensions of time – whether agent had authority to make representations

Trade Practices Act 1974 (Cth)

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Tanwar Enterprises Pty Ltd v Cauchi (2003) 201 ALR 359

COUNSEL:

PL O’Shea SC for the plaintiff
PE Hack SC and TP Sullivan for the first to fourth defendants

SOLICITORS:

Russell and Company for the plaintiff
Gadens Lawyers for the first to fourth defendants

MULLINS J: The plaintiff claims specific performance of four contracts dated 18 March 2003 against the respective vendors under each of those contracts or alternative relief.

The fourth defendants are the parents of the second and the third defendants. When referring to the fourth defendants separately, I will refer to them as Mr Kronk and Mrs Kronk. The first defendant is the husband of the second defendant. Together the defendants are the owners of the parcels of land bounded by Minchinton Street, Ormuz Avenue and Osterley Avenue at Caloundra comprising approximately 12,669m² which they sold to the plaintiff for a total purchase price of $7.8m.

Each of the four contracts was in the standard form contract for houses and land (5^th ed) approved by the Real Estate Institute of Queensland Ltd and the Queensland Law Society Inc, but incorporated extensive special conditions. Time was of the essence of each of the contracts.

Special conditions 1 and 9 are in the following terms:

“1. Deposit
(a)The parties agree that the second sentence of clause 2.2(1) of the Standard Residential Terms of the Contract is varied to the extent that it is inconsistent with…

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: [2004] QSC 220
Decision Date: 5 August 2004

CaseChat Overview and Summary

Fairmede Pty Ltd sought to enforce specific performance of contracts for the sale of land against Von Pein, claiming the contracts were validly entered into. The defendants argued the contracts were terminated due to the plaintiffs' failure to comply with a special condition by the stipulated due date, which was of the essence. The defendants' agent had made representations to the plaintiffs that the defendants would accept compliance with the special condition and grant extensions of time if requested. The plaintiffs claimed the agent lacked authority to make such representations. The court had to determine if the agent had the authority to make the representations and if the contracts were validly terminated.

The court examined the contracts and found that time was indeed of the essence regarding compliance with the special condition. The court assessed whether the defendants' agent had actual or apparent authority to make the representations. The court concluded that the agent did not have the authority to make such representations and that the contracts were validly terminated due to the plaintiffs' failure to meet the special condition by the due date. The court determined that the defendants were not estopped from enforcing the termination due to the agent's representations.

The court dismissed the plaintiffs' claim for specific performance and declared that each of the contracts was validly terminated by the defendants due to the breach of the special condition. The court ordered that the deposits paid by the plaintiffs be forfeited to the defendants. The court's decision focused on the strict adherence to the terms of the contracts and the lack of authority of the defendants' agent to alter those terms.

Orders

Orders of the court

1. The plaintiff’s claim is dismissed.

2. It is declared that:

(a) Each of the four contracts of sale dated 18 March 2003 which are the subject of this proceeding were validly terminated by notice given on behalf of the defendants to the plaintiff dated 3 June 2003, because of a breach by the plaintiff of special condition 9(a) of each contract of sale;

(b) The deposits totalling the sum of $780,000 paid by the plaintiff pursuant to the said contracts of sale are forfeited to the defendants.

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:	Fairmede Pty Ltd v Von Pein & Ors [2004] QSC 220
PARTIES:	FAIRMEDE PTY LTD ACN 101 832 562 (plaintiff) v GEORGE WILLIAM VON PEIN (first defendant) RUTH JOY KRONK (second defendant) PAUL CHRISTOPHER KRONK (third defendant) ERIC NELSON KRONK and HAZEL JANE KRONK (fourth defendants)
FILE NO:	BS5686 of 2003
DIVISION:	Trial Division
PROCEEDING:	Trial
DELIVERED ON:	5 August 2004
DELIVERED AT:	Brisbane
HEARING DATE:	3-5, 8-10 March and 7 April 2004
JUDGE:	Mullins J
ORDER:	1. The plaintiff’s claim is dismissed. 2. It is declared that: (a) Each of the four contracts of sale dated 18 March 2003 which are the subject of this proceeding were validly terminated by notice given on behalf of the defendants to the plaintiff dated 3 June 2003, because of a breach by the plaintiff of special condition 9(a) of each contract of sale; (b) The deposits totalling the sum of $780,000 paid by the plaintiff pursuant to the said contracts of sale are forfeited to the defendants.
CATCHWORDS:	CONTRACT – SALE OF LAND – purchaser claims specific performance of contracts where vendor purported to terminate for failure to comply on the due date with a special condition - where time was of the essence – whether vendors or their agent made representations as to what the vendors would accept as compliance with the special condition and as to the granting of extensions of time – whether agent had authority to make representations Trade Practices Act 1974 (Cth) Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Tanwar Enterprises Pty Ltd v Cauchi (2003) 201 ALR 359
COUNSEL:	PL O’Shea SC for the plaintiff PE Hack SC and TP Sullivan for the first to fourth defendants
SOLICITORS:	Russell and Company for the plaintiff Gadens Lawyers for the first to fourth defendants