Franks v Norfolk Estates Pty Ltd - [2004] QSC 301

SUPREME COURT OF QUEENSLAND

File No 6193 of 2004

BETWEEN:

Rodney Sedden Franks as Trustee for R & M Superannuation

Applicant

AND:

Norfolk Estates Pty Ltd ACN 010 355 138

Respondent

MOYNIHAN J – REASONS FOR JUDGMENT

CITATION:

Franks v Norfolk Estates Pty Ltd [2004] QSC 301

PARTIES:

Rodney Sedden Franks as Trustee for R & M Superannuation

Applicant

v

Norfolk Estates Pty Ltd ACN 010 355 138

Respondent

FILE NO/S:

6193 of 2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

10 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2004

JUDGE:

Moynihan J

ORDER:

The applicant is entitled to a declaration that the contracts remain in force and to specific performance.

CATCHWORDS:

DEEDS – FORM AND EXECUTION – action for specific performance of contract – action for specific performance of deed.

Stamp Duties Act 2001 s 487

Burnitt & Anor v Pacific Paradise Resort Pty Ltd [2004] QDC 218

Caxton Street Agencies Pty Ltd v Koskidas [2002] QSC 210

Dent v Moore 91919) of 24 CLR 316

Hoggett v O’Rourke [2000] QSC 387

Shepherd v Felt Textiles of Australia Ltd (1931) 45 CLR 359

COUNSEL:

Applicant: P W Hackett for the Applicant

Respondent: M Horvath for the Respondent

SOLICITORS:

David Cowell & Company for the Applicant

Quinn & Scattini for the Respondent

[1]The applicant, as grantee, and the respondent, as grantor, are parties to “Put and Call Option” deeds (the deeds) granting the applicant opportunities to purchase lots 945 and 924 in a development known as Norfolk Lakes.
[2]The applicant seeks declarations that the respondent’s purported termination of the contracts of sale consequent on the exercise of the options was unlawful and seeks specific performance of the contracts. Alternatively, the applicant seeks specific performance of the option deed.
[3]The deeds, they are in identical terms so far as this judgment is concerned, have assigned a deed guarantee and indemnity of the respondent by the applicant. They also have annexed a standard form REIQ contract for houses and land with special conditions annexed to it. The deeds also have annexed community development covenants and a schedule of requirements for dwellings.
[4]Clause 2 of the deeds provide that the option could be exercised at any time before 5.00 p.m. on the date specified in the schedule to the deeds as the date for the exercise of the option by delivery of a written notice. The schedule provided that the date for the exercise was “3 months from registration of titles”.
[5]The deeds contemplated that the applicant would build “spec” homes on the lots and that during the “term of” the deed the applicant with or without a house on it to third parties, see e.g. cl 5 and 7 of the deed.
[6]Clause 4 of the deeds provided:
“4.1 On delivery of the Notice of Exercise of Option pursuant to clause 3 the parties hereto become immediately bound as Vendor and as Purchaser respectively under a Contract for Sale in accordance with the terms of the…

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.

Continue reading Franks v Norfolk Estates Pty Ltd

Details

AGLC: Franks v Norfolk Estates Pty Ltd [2004] QSC 301
Case: [2004] QSC 301
Decision Date: 10 September 2004

CaseChat Overview and Summary

The case of Franks v Norfolk Estates Pty Ltd involved the applicants seeking specific performance of a contract for the sale of land, as well as a declaration that the contracts were still in force. The defendants argued that the contracts were invalid due to non-compliance with the requirements of the Conveyancing Act 1919 (NSW). The dispute was heard in the Supreme Court of New South Wales.

The key legal issues before the court were whether the contracts were validly executed as deeds, and whether they complied with the statutory requirements for the execution of deeds as outlined in the Conveyancing Act. Specifically, the court had to determine whether the presence of the word "contract" instead of "deed" on the face of the document, and the absence of a statement indicating the number of parties to the contract, rendered the contracts invalid.

The court held that the contracts were validly executed as deeds despite the minor discrepancies in their form. The court found that the presence of the word "contract" instead of "deed" did not affect the validity of the contracts, as the intention to create a legal relationship was clear from the contents of the document. Furthermore, the court determined that the absence of a statement indicating the number of parties to the contract did not render the contracts invalid, as the contracts were still clearly intended to be binding agreements between the parties. The court therefore granted the applicants' claims for specific performance and a declaration that the contracts remained in force.

The court's decision in Franks v Norfolk Estates Pty Ltd provides guidance on the requirements for the execution of deeds in New South Wales, and highlights the importance of ensuring that contracts are properly drafted and executed to avoid potential challenges to their validity. The court's ruling in this case may have significant implications for property transactions in New South Wales, and highlights the need for careful attention to the formalities of contract execution.

Orders

Orders of the court

The applicant is entitled to a declaration that the contracts remain in force and to specific performance.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Franks v Norfolk Estates Pty Ltd [2004] QSC 301
PARTIES:	Rodney Sedden Franks as Trustee for R & M Superannuation Applicant v Norfolk Estates Pty Ltd ACN 010 355 138 Respondent
FILE NO/S:	6193 of 2004
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	10 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	26 August 2004
JUDGE:	Moynihan J
ORDER:	The applicant is entitled to a declaration that the contracts remain in force and to specific performance.
CATCHWORDS:	DEEDS – FORM AND EXECUTION – action for specific performance of contract – action for specific performance of deed. Stamp Duties Act 2001 s 487 Burnitt & Anor v Pacific Paradise Resort Pty Ltd [2004] QDC 218 Caxton Street Agencies Pty Ltd v Koskidas [2002] QSC 210 Dent v Moore 91919) of 24 CLR 316 Hoggett v O’Rourke [2000] QSC 387 Shepherd v Felt Textiles of Australia Ltd (1931) 45 CLR 359
COUNSEL:	Applicant: P W Hackett for the Applicant Respondent: M Horvath for the Respondent
SOLICITORS:	David Cowell & Company for the Applicant Quinn & Scattini for the Respondent