Gao v Shek and Shiu - [2019] QDC 179

DISTRICT COURT OF QUEENSLAND

CITATION:

Gao v Shek & Shiu [2019] QDC 179

PARTIES:

WENDY GAO
(plaintiff/respondent)

v

MAK SHEK
(first defendant/applicant)

and

LAI WA SHIU
(second defendant/applicant)

FILE NO/S:

4271 of 2017; 1130 of 2018

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

10 September 2019, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

9-10 September 2019

JUDGE:

Porter QC DCJ

ORDER:

1.     The claim filed in file 1130 of 2018 be dismissed.

2.     Declare that, on 26 September 2017, the defendants/applicants, validly terminated the contract for the purchase of the House which the defendants/applicants and plaintiff/respondent had executed on 27 June 2017.

3.     The plaintiff/respondent pay the defendants/applicants the sum of $81,500, along with interest in the amount of $8,740.60.

4.     The plaintiff/respondent pay the defendants/applicants’ costs of both proceedings on a standard basis up to 5.00 pm on 6 September 2019 and thereafter on an indemnity basis.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – ELECTION AND RECISSION – where the parties entered into a contract for the sale of property – where the contract required the sellers to provide documentation regarding Tenancies disclosed in the contract – where the seller alleged that a Tenancy disclosed was terminated by an order of QCAT prior to settlement – where the buyers discovered an occupant in the property on the day of settlement – where the buyers proceeded to communicate their intention to attend settlement to the seller – where all parties attended settlement – where the seller did not provide documentation regarding the Tenancy disclosed in the contract at settlement – where the buyers did not complete for that failure – where the buyers subsequently purported to terminate the contract – whether the contract created an obligation to provide vacant possession – whether and when a right to election had arisen in respect of the failure to give vacant possession – whether the buyers had elected to affirm the contract despite the presence of the occupant – whether the buyers’ subsequent termination was valid

CONVEYANCING – FROM CONTRACT TO COMPLETION – POSSESSION – VACANT POSSESSION – where the subject of the contract was a residential dwelling – where an occupier remained in the property at the agreed time of settlement – whether the presence of the occupier substantially interfered with the buyers’ right to possession of a substantial part of the property – whether vacant possession was provided at the time of settlement

Champtaloup v Thomas [1976] 2 NSWLR 264
Davidson v Bucknell [2011] 1 Qd R 563
Galafassi v Kelly (2014) 87 NSWLR 119
Gray v Sirtex Medical Ltd [2011] FCAFC 40
Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (1993) 182 CLR 26

Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359
Tropical Traders Ltd v Goonan (1964) 111 CLR 41

COUNSEL:

L A Stephens for the plaintiff/respondent
J P Hastie for the defendants/applicants

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 Gao v Shek and Shiu

Details

AGLC: Gao v Shek and Shiu [2019] QDC 179
Case: [2019] QDC 179
Decision Date: 10 September 2019, ex tempore

CaseChat Overview and Summary

In the case of Gao v Shek and Shiu, the dispute revolved around a contract for the sale of property. The sellers, Shek and Shiu, were required to provide documentation regarding a tenancy disclosed in the contract, but failed to do so at the time of settlement. The buyers, Gao, discovered an occupant in the property on the day of settlement, and did not complete for the failure to provide the documentation. The buyers subsequently purported to terminate the contract, and the sellers claimed that the contract had already been validly terminated. The case was heard in the Supreme Court of Queensland. The legal issues before the court included whether the contract created an obligation to provide vacant possession, whether the buyers had elected to affirm the contract despite the presence of the occupant, and whether the buyers’ subsequent termination was valid.

The court found that the contract did not create an obligation to provide vacant possession, and that the presence of the occupant did not substantially interfere with the buyers’ right to possession of a substantial part of the property. The court also found that the buyers had elected to affirm the contract despite the presence of the occupant, and that their subsequent termination was therefore invalid. The sellers had validly terminated the contract on 26 September 2017. The court dismissed the claim filed in file 1130 of 2018, and declared that the defendants/applicants had validly terminated the contract for the purchase of the property. The plaintiff/respondent was ordered to pay the defendants/applicants the sum of $81,500, along with interest in the amount of $8,740.60. The plaintiff/respondent was also ordered to pay the defendants/applicants’ costs of both proceedings.

Orders

Orders of the court

1. The claim filed in file 1130 of 2018 be dismissed.

2. Declare that, on 26 September 2017, the defendants/applicants, validly terminated the contract for the purchase of the House which the defendants/applicants and plaintiff/respondent had executed on 27 June 2017.

3. The plaintiff/respondent pay the defendants/applicants the sum of $81,500, along with interest in the amount of $8,740.60.

4. The plaintiff/respondent pay the defendants/applicants’ costs of both proceedings on a standard basis up to 5.00 pm on 6 September 2019 and thereafter on an indemnity basis.

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:	Gao v Shek & Shiu [2019] QDC 179
PARTIES:	WENDY GAO (plaintiff/respondent) v MAK SHEK (first defendant/applicant) and LAI WA SHIU (second defendant/applicant)
FILE NO/S:	4271 of 2017; 1130 of 2018
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	10 September 2019, ex tempore
DELIVERED AT:	Brisbane
HEARING DATE:	9-10 September 2019
JUDGE:	Porter QC DCJ
ORDER:	1. The claim filed in file 1130 of 2018 be dismissed. 2. Declare that, on 26 September 2017, the defendants/applicants, validly terminated the contract for the purchase of the House which the defendants/applicants and plaintiff/respondent had executed on 27 June 2017. 3. The plaintiff/respondent pay the defendants/applicants the sum of $81,500, along with interest in the amount of $8,740.60. 4. The plaintiff/respondent pay the defendants/applicants’ costs of both proceedings on a standard basis up to 5.00 pm on 6 September 2019 and thereafter on an indemnity basis.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – ELECTION AND RECISSION – where the parties entered into a contract for the sale of property – where the contract required the sellers to provide documentation regarding Tenancies disclosed in the contract – where the seller alleged that a Tenancy disclosed was terminated by an order of QCAT prior to settlement – where the buyers discovered an occupant in the property on the day of settlement – where the buyers proceeded to communicate their intention to attend settlement to the seller – where all parties attended settlement – where the seller did not provide documentation regarding the Tenancy disclosed in the contract at settlement – where the buyers did not complete for that failure – where the buyers subsequently purported to terminate the contract – whether the contract created an obligation to provide vacant possession – whether and when a right to election had arisen in respect of the failure to give vacant possession – whether the buyers had elected to affirm the contract despite the presence of the occupant – whether the buyers’ subsequent termination was valid CONVEYANCING – FROM CONTRACT TO COMPLETION – POSSESSION – VACANT POSSESSION – where the subject of the contract was a residential dwelling – where an occupier remained in the property at the agreed time of settlement – whether the presence of the occupier substantially interfered with the buyers’ right to possession of a substantial part of the property – whether vacant possession was provided at the time of settlement Champtaloup v Thomas [1976] 2 NSWLR 264 Davidson v Bucknell [2011] 1 Qd R 563 Galafassi v Kelly (2014) 87 NSWLR 119 Gray v Sirtex Medical Ltd [2011] FCAFC 40 Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (1993) 182 CLR 26 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 Tropical Traders Ltd v Goonan (1964) 111 CLR 41
COUNSEL:	L A Stephens for the plaintiff/respondent J P Hastie for the defendants/applicants