Freeman v James - [2002] QSC 464

SUPREME COURT OF QUEENSLAND

CITATION:

Freeman v James [2002] QSC 464

PARTIES:

SALLY ELIZABETH FREEMAN
(Applicant)
v
ANDREW WILLIAM JAMES
(Respondent)

FILE NO/S:

S 578 of 2002

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

29 November 2002

DELIVERED AT:

Cairns

HEARING DATE:

26 November 2002

JUDGE:

Jones J

ORDER:

That the contract dated 17 August 2002 for sale of the property described as Lot 5 on Crown Plan C22514 being 9 Baler Street in Port Douglas between the applicant as purchaser and the respondent as vendors be specifically performed and completed at a time to be agreed by 4.00 pm on Friday 29 November 2002 at the Commonwealth Bank at Port Douglas.1.

That the parties perform in accordance with the settlement statement in exhibit “SPW2” document 3 to the affidavit of Sean Patrick Walsh filed 19 November 2002 subject to any adjustment in the direction of the payment of cheques by the solicitors for the respondent by 4.00 pm on 28 November 2002.2.

That the respondent pay the applicant’s costs of and incidental to this application including the reserved costs of 26 November 2002 to be assessed on an indemnity basis.3.

That the balance of the originating application be adjourned to a date to be fixed.4.

That service of this order by facsimile transmission upon O’Dwyer and Bradley, Solicitors, shall be treated as service upon the respondent.5.

That each party have liberty to apply on giving at least one days notice to the other party.6.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE BREACH – where vendor attempted to withdraw offer to sell and to terminate a contract for the sale and purchase of land subsequently on-sold by the purchaser before contract was settled – whether an order for specific performance could be made

Property Agents and Motor Dealer’s Act 2000 s 133, s 365

Legione v Harkey [1982 – 1983] 152 CLR 406

COUNSEL:

D. Morzone for the applicant

SOLICITORS:

Miller Harris for the applicant

The facts

On 17 August 2002 the respondent, as registered proprietor, agreed to sell and the applicant agreed to buy Lot 5 C22514 as freehold land at 9 Baler Street, Port Douglas. Under the contract the purchase price was $500,000 and the deposit of $16,000 was to be paid in two instalments: $1,000 when the applicant/buyer signed the contract and $15,000 on 9 September 2002.[1]
[1]See Contract of Sale 17 August 2002, Ex SEF1 to Freeman Affidavit filed 18 Nov 2002

The deposit was paid as had been agreed, $1,000 on 17 August, 2002 and the balance on 2 September 2002.[2] These amounts were paid to Vista Realty the real estate agent acting for the vendor and the deposit holder nominated in the contract and the respondent’s real estate agent for the sale.
[2]See para 6 Freeman Affidavit 18 Nov 2002

Under s 3.1 of this contract for the sale and purchase of Lot 5, the contract was made conditional on the buyer…

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 Freeman v James

Details

AGLC: Freeman v James [2002] QSC 464
Case: [2002] QSC 464
Decision Date: 29 November 2002

CaseChat Overview and Summary

In Freeman v James, the matter before the court involved a dispute over the sale of land. The applicant, Freeman, sought an order for specific performance of a contract for the sale of Lot 5 on Crown Plan C22514 at 9 Baler Street, Port Douglas, originally dated 17 August 2002. Freeman, the purchaser, alleged that the respondents, James, the vendors, had attempted to withdraw from the contract and terminate it after Freeman had on-sold the property. The dispute required the court to determine whether specific performance could be ordered despite the vendors' attempt to withdraw.

The central legal issue before the court was whether an order for specific performance of the contract could be granted, notwithstanding the vendors' attempt to withdraw from the contract after the purchaser had on-sold the property. This issue hinged on the principles of contract law, specifically focusing on the enforceability of the contract in light of the vendor's purported withdrawal and termination. The court had to consider the effect of the vendor's actions on the enforceability of the contract and whether the principles of equity warranted specific performance in these circumstances.

The court, in delivering its judgment, found that the vendor's attempt to withdraw and terminate the contract was ineffective. The court reasoned that the purchaser had already on-sold the property, thereby making the vendor's actions moot. Given the equitable nature of specific performance, the court held that it was appropriate to order specific performance of the contract as originally agreed. The court further detailed the terms under which the contract would be specifically performed, including the completion of the sale and the payment of the purchase price by the purchaser's solicitors. The court also ordered the vendors to pay the purchaser's costs associated with the application.

The orders made by the court mandated that the contract be specifically performed, with the completion to occur by 4.00 pm on 29 November 2002 at the Commonwealth Bank in Port Douglas. The court also directed that the parties adhere to the settlement statement provided and that the vendors pay the purchaser's costs on an indemnity basis. The balance of the originating application was adjourned to a future date, and the court specified the method for serving the order upon the vendors' solicitors. Additionally, the court granted each party the liberty to apply for further orders with appropriate notice.

Orders

Orders of the court

That the contract dated 17 August 2002 for sale of the property described as Lot 5 on Crown Plan C22514 being 9 Baler Street in Port Douglas between the applicant as purchaser and the respondent as vendors be specifically performed and completed at a time to be agreed by 4.00 pm on Friday 29 November 2002 at the Commonwealth Bank at Port Douglas.1.

That the parties perform in accordance with the settlement statement in exhibit “SPW2” document 3 to the affidavit of Sean Patrick Walsh filed 19 November 2002 subject to any adjustment in the direction of the payment of cheques by the solicitors for the respondent by 4.00 pm on 28 November 2002.2.

That the respondent pay the applicant’s costs of and incidental to this application including the reserved costs of 26 November 2002 to be assessed on an indemnity basis.3.

That the balance of the originating application be adjourned to a date to be fixed.4.

That service of this order by facsimile transmission upon O’Dwyer and Bradley, Solicitors, shall be treated as service upon the respondent.5.

That each party have liberty to apply on giving at least one days notice to the other party.6.

Background

Background to the litigation

Full text does not contain this section.

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:	Freeman v James [2002] QSC 464
PARTIES:	SALLY ELIZABETH FREEMAN (Applicant) v ANDREW WILLIAM JAMES (Respondent)
FILE NO/S:	S 578 of 2002
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	29 November 2002
DELIVERED AT:	Cairns
HEARING DATE:	26 November 2002
JUDGE:	Jones J
ORDER:	That the contract dated 17 August 2002 for sale of the property described as Lot 5 on Crown Plan C22514 being 9 Baler Street in Port Douglas between the applicant as purchaser and the respondent as vendors be specifically performed and completed at a time to be agreed by 4.00 pm on Friday 29 November 2002 at the Commonwealth Bank at Port Douglas.1. That the parties perform in accordance with the settlement statement in exhibit “SPW2” document 3 to the affidavit of Sean Patrick Walsh filed 19 November 2002 subject to any adjustment in the direction of the payment of cheques by the solicitors for the respondent by 4.00 pm on 28 November 2002.2. That the respondent pay the applicant’s costs of and incidental to this application including the reserved costs of 26 November 2002 to be assessed on an indemnity basis.3. That the balance of the originating application be adjourned to a date to be fixed.4. That service of this order by facsimile transmission upon O’Dwyer and Bradley, Solicitors, shall be treated as service upon the respondent.5. That each party have liberty to apply on giving at least one days notice to the other party.6.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE BREACH – where vendor attempted to withdraw offer to sell and to terminate a contract for the sale and purchase of land subsequently on-sold by the purchaser before contract was settled – whether an order for specific performance could be made Property Agents and Motor Dealer’s Act 2000 s 133, s 365 Legione v Harkey [1982 – 1983] 152 CLR 406
COUNSEL:	D. Morzone for the applicant
SOLICITORS:	Miller Harris for the applicant