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Gallagher v Boylan

Gallagher v Boylan

Case [2011] QSC 94 28 April 2011

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SUPREME COURT OF QUEENSLAND

CITATION:

Gallagher v Boylan [2011] QSC 94

PARTIES:

DONNA MARIE GALLAGHER
(plaintiff)
v
KYM BOYLAN
(defendant)

FILE NO:

BS7518 of 2009

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

28 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2011

JUDGE:

Mullins J

ORDER:

1. Judgment for the plaintiff against the defendant for the sum of $250,000 and interest pursuant to s 47 of the Supreme Court Act 1995 of $60,890.41.
2. The sum of $272,725 plus any accrued interest being the moneys held in court on account of this proceeding be paid out to the plaintiff on account of the judgment sum.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – SPECIFIC INTERPRETATIONS – where plaintiff and defendant executed a put and call option deed relating to land on which a dwelling, swimming pool and tennis court were constructed – where the land comprised two lots on one indefeasible title – whether the land was “a single parcel of land” within the meaning of s 17(1)(a) Property Agents and Motor Dealers Act 2000 (Qld)

STATUTES – ACTS OF PARLIAMENT – WAIVER OF STATUTORY RIGHTS – PROVISIONS CONFERRING PRIVATE RIGHTS – where parties executed a put and call option deed relating to residential property – where vendor failed to comply with s 365(2) Property Agents and Motor Dealers Act 2000 (Qld) – where clause in the deed provided for the deposit to be released to the vendor after signed copy of the deed had been delivered to the purchaser – where purchaser’s solicitor sent letter authorising the defendant’s solicitor to account to the vendor for the deposit in terms of the clause in the deed – whether that letter amount to waiver on behalf of the purchaser of the right to withdraw under s 365(3) Property Agents and Motor Dealers Act 2000 (Qld) of the offer to purchase

Land Title Act 1994, s 4, s 39
Property Agents and Motor Dealers Act 2000, s 17, s 364, s 365, s 367

Blackman v Milne [2006] QSC 350, considered
Cheree-Ann Property Developers Pty Ltd & Anor v East West International Development Pty Ltd [2006] QSC 182; [2007] 1 Qd R 132, considered
Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2008] QSC 261, considered
Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2009] QCA 231, considered
Juniper v Roberts [2007] QSC 379, considered
MNM Developments Pty Ltd v Gerrard [2005] QCA 230; [2005] 2 Qd R 515, considered
M P Management (Aust) Pty Ltd v Churven [2002] QSC 320, followed
Sargent v ASL Developments Ltd (1974) 131 CLR 634, followed
Vale 1 Pty Ltd as Trustee for the Vale 1 Trust v Delorain Pty Ltd as Trustee for theDelorain Trust [2010] QCA 259, considered

COUNSEL:

D A Savage SC for the plaintiff
M R Bland for the defendant

SOLICITORS:

Morgan Conley for the plaintiff
Reichman…

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 Gallagher v Boylan

Details

AGLC: Gallagher v Boylan [2011] QSC 94
Case: [2011] QSC 94
Decision Date: 28 April 2011

CaseChat Overview and Summary

The plaintiff, Gallagher, and the defendant, Boylan, were involved in a dispute concerning a put and call option deed executed between them regarding land on which a dwelling, swimming pool, and tennis court were constructed. The land in question consisted of two lots on one indefeasible title. The primary issue before the court was whether the land constituted "a single parcel of land" under section 17(1)(a) of the Property Agents and Motor Dealers Act 2000 (Qld). Additionally, the court had to determine whether a letter sent by the purchaser's solicitor to the defendant's solicitor, authorising the release of the deposit to the vendor, constituted a waiver of the statutory right to withdraw under section 365(3) of the same Act.

In addressing the first issue, the court examined the statutory definition of "a single parcel of land" and considered the physical and legal characteristics of the property. The court found that the two lots, despite being on one indefeasible title, did not meet the criteria for being considered a single parcel of land due to their distinct physical and legal distinctions. Regarding the second issue, the court held that the letter sent by the purchaser's solicitor did not constitute a waiver of the statutory right to withdraw. The letter authorised the defendant's solicitor to account for the deposit in accordance with a clause in the deed, but it did not explicitly waive the statutory right to withdraw.

The court ruled in favour of the plaintiff, awarding damages of $250,000 plus interest. The court ordered that the sum of $272,725, held in court in relation to the proceedings, be paid to the plaintiff to satisfy the judgment sum.

Orders

Orders of the court

1. Judgment for the plaintiff against the defendant for the sum of $250,000 and interest pursuant to s 47 of the Supreme Court Act 1995 of $60,890.41.

2. The sum of $272,725 plus any accrued interest being the moneys held in court on account of this proceeding be paid out to the plaintiff on account of the judgment sum.

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.

Citations

AGLC Citation

Gallagher v Boylan [2011] QSC 94

Most Recent Citation

Boylan v Gallagher [2011] QCA 240

Cases citing this decision · 4 of 4 shown

Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc
[2022] QSC 300 Para 18

…the inadvertence of a party’s legal representative.[10] [8] Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (No 2) (1988) 62 ALJR 151, 152. [9] Gallagher v Boylan (2013) 1 Qd R 204, 213 [18]. [10] Gallagher v Boylan (2013) 1 Qd R 204, 214 [20].…
Gallagher v Boylan
[2012] QCA 159 Para 1

…lan on her counterclaim for $2,100,000, plus interest.[2] The Court made consequential costs orders on 14 October 2011.[3] [1] Gallagher v Boylan [2011] QSC 94. [2] Boylan v Gallagher [2012] 1 Qd R 420. [3] Boylan v Gallagher [2011] QCA 287.…
Boylan v Gallagher
[2011] QCA 287 Para 1

…w the offer to purchase made in the contract form”. The trial judge found against the appellant on both points.[2] [2] Gallagher v Boylan [2011] QSC 94 at [17], [30].…
Boylan v Gallagher
[2011] QCA 240 Para 1

…and ordered the appellant to pay the respondent’s costs of the proceeding on the standard basis or as otherwise agreed.[2] [2] Gallagher v Boylan [2011] QSC 94.…

View all 4 citing cases →

Cases cited in this decision · 9 of 9 shown

Vale 1 Pty Ltd as Trustee for the Vale 1 Trust v Delorain Pty Ltd as Trustee for the Delorain Trust
[2010] QCA 259 Para 1

…in s 17(1) of the Act. The Court of Appeal in Vale 1 Pty Ltd as Trustee for the Vale 1 Trust v Delorain Pty Ltd as Trustee for the Delorain Trust [2010] QCA 259 ( Vale v Delorain ) at [1], [7], [73] and [89] did not follow Cheree-Ann to the extent that the decision was based on the conclusion that the substance o…
Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd
[2009] QCA 231 Para 1

…tract did not relate to residential property by virtue of the exclusion in the definition in s 17(3)(b)(ii) of the Act. The Court of Appeal in Hedley [2009] QCA 231 dismissed the appeal, upholding the decision that the land was not residential property, as a result of s 17(3)(b)(ii) of the Act, but for different…
Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd
[2008] QSC 261 Para 1

…e offer to purchase was considered, but was not necessary for the decision, was Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2008] QSC 261 ( Hedley ). Fryberg J found that the subject contract did not relate to residential property by virtue of the exclusion in the definition in s 17(3)(…
Juniper v Roberts
[2007] QSC 379 Para 1

…In Juniper v Roberts [2007] QSC 379 the purchaser offered to purchase a residential property from the vendors on terms that did not require settlement for two years and entitled the purchaser to take possession on payment of the initial deposit and acceptance of title which the purchaser did within about two week…
Blackman v Milne
[2006] QSC 350 Para 1

…It was the purchasers in Blackman v Milne [2006] QSC 350 ( Blackman ) who wished to enforce the contract (which was entered into after the 2005 amendments) and relied on their express waiver of the right conferred by s 365(2)(c)(ii) of the Act. The vendors were seeking to rely on their agent’s failure to direct t…
Cheree-Ann Property Developers Pty Ltd v East West International Development Pty Ltd
[2006] QSC 182

…QSC 350, considered Cheree-Ann Property Developers Pty Ltd & Anor v East West International Development Pty Ltd [2006] QSC 182; [2007] 1 Qd R 132, considered Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2008] QSC 261, considered Hedley Commercial Property Services Pty Ltd v BRCP Oasis La…
MNM Developments Pty Ltd v Gerrard
[2005] QCA 230

…Ltd [2009] QCA 231, considered Juniper v Roberts [2007] QSC 379, considered MNM Developments Pty Ltd v Gerrard [2005] QCA 230; [2005] 2 Qd R 515, considered M P Management (Aust) Pty Ltd v Churven [2002] QSC 320, followed Sargent v ASL Developments Ltd (1974) 131 CLR 634, followed Vale 1 Pty Ltd as Trustee for t…
M P Management (Aust) P/L v Churven
[2002] QSC 320 Para 1

…issue of waiver of a right of termination conferred by the Act (before the 2005 amendments) was considered in M P Management (Aust) Pty Ltd v Churven [2002] QSC 320 ( M P Management ). The purchaser had purported to terminate the contract on the basis that the warning statement had not been executed and witnessed…
Sargent v ASL Developments Ltd
[1974] HCA 40 Para 1

…son who is entitled to alternative rights inconsistent with one another makes an election between the rights: see also Sargent v ASL Developments Ltd (1974) 131 CLR 634, 641, 645, 646, 655 and 658. It is not easy to analyse what occurred between the plaintiff and the defendant in this matter in terms of inconsistent…

Legislation cited in this decision · 5

Land Title Act 1994 (Qld)
4 2 mentions (from Para 1)
Property Agents and Motor Dealers Act 2000 (Qld)
17 2 mentions
Land Sales Act 1984 (Qld)
1 mention (from Para 1)
Liquor and Other Acts Amendment Act 2005 (Qld)
1 mention (from Para 1)
Supreme Court Act 1995 (Qld)
1 mention (from Para 1)

CITATION:	Gallagher v Boylan [2011] QSC 94
PARTIES:	DONNA MARIE GALLAGHER (plaintiff) v KYM BOYLAN (defendant)
FILE NO:	BS7518 of 2009
DIVISION:	Trial Division
PROCEEDING:	Trial
DELIVERED ON:	28 April 2011
DELIVERED AT:	Brisbane
HEARING DATE:	31 March 2011
JUDGE:	Mullins J
ORDER:	*1. Judgment for the plaintiff against the defendant for the sum of $250,000 and interest pursuant to s 47 of the Supreme Court Act* 1995 of $60,890.41. 2. The sum of $272,725 plus any accrued interest being the moneys held in court on account of this proceeding be paid out to the plaintiff on account of the judgment sum.**
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – SPECIFIC INTERPRETATIONS – where plaintiff and defendant executed a put and call option deed relating to land on which a dwelling, swimming pool and tennis court were constructed – where the land comprised two lots on one indefeasible title – whether the land was “a single parcel of land” within the meaning of s 17(1)(a) Property Agents and Motor Dealers Act 2000 (Qld) STATUTES – ACTS OF PARLIAMENT – WAIVER OF STATUTORY RIGHTS – PROVISIONS CONFERRING PRIVATE RIGHTS – where parties executed a put and call option deed relating to residential property – where vendor failed to comply with s 365(2) Property Agents and Motor Dealers Act 2000 (Qld) – where clause in the deed provided for the deposit to be released to the vendor after signed copy of the deed had been delivered to the purchaser – where purchaser’s solicitor sent letter authorising the defendant’s solicitor to account to the vendor for the deposit in terms of the clause in the deed – whether that letter amount to waiver on behalf of the purchaser of the right to withdraw under s 365(3) Property Agents and Motor Dealers Act 2000 (Qld) of the offer to purchase Land Title Act 1994, s 4, s 39 Property Agents and Motor Dealers Act 2000, s 17, s 364, s 365, s 367 Blackman v Milne [2006] QSC 350, considered Cheree-Ann Property Developers Pty Ltd & Anor v East West International Development Pty Ltd [2006] QSC 182; [2007] 1 Qd R 132, considered Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2008] QSC 261, considered Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2009] QCA 231, considered Juniper v Roberts [2007] QSC 379, considered MNM Developments Pty Ltd v Gerrard [2005] QCA 230; [2005] 2 Qd R 515, considered M P Management (Aust) Pty Ltd v Churven [2002] QSC 320, followed Sargent v ASL Developments Ltd (1974) 131 CLR 634, followed Vale 1 Pty Ltd as Trustee for the Vale 1 Trust v Delorain Pty Ltd as Trustee for theDelorain Trust [2010] QCA 259, considered
COUNSEL:	D A Savage SC for the plaintiff M R Bland for the defendant
SOLICITORS:	Morgan Conley for the plaintiff Reichman…