Gheko Developments P/L v Azzopardi - [2004] QSC 455

SUPREME COURT OF QUEENSLAND

CITATION:

Gheko Developments P/L v Azzopardi & Ors [2004] QSC 455

PARTIES:

GHEKO DEVELOPMENTS PTY LTD
ACN 105 201 563
(plaintiff)
v
PHILIP AZZOPARDI AND PAULINE AZZOPARDI
(defendants)

FILE NO:

BS 3249/04

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

15 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2004

JUDGE:

Wilson J

ORDER:

1.      Declare that the defendants’ purported termination of the contract on 19 March 2004 was unlawful.

2.      Order that the contract between the plaintiff and the defendants dated 18 August 2003 in respect of property described as Lot 1 on RP103512, County of Canning, Parish of Canning, Title Reference 13761122 be specifically performed and carried into execution as follows:-

(a)     Settlement take place at Caboolture 14 days after the plaintiff receives Council Approval of Engineer working drawings;

(b)     Upon satisfaction of (a) by the plaintiff and at Settlement:-

(i)     The plaintiff pay to the defendants the balance purchase price of $1,299,000.00 together with any adjustments required by the terms of the contract in exchange for a memorandum of transfer in registrable form of an estate in fee simple in the property described in the contract as Lot 1 on RP 103512, County of Canning, Parish of Canning, Title Reference 13761122 in favour of the plaintiff together with any Certificate of Title;

(ii)     The defendant deliver to the plaintiff a memorandum of transfer in registrable form of an estate in fee simple in the property described in the contract as Lot 1 on RP 103512, County of Canning, Parish of Canning, Title Reference 13761122 in favour of the plaintiff together with any Certificate of Title in exchange for the balance purchase price $1,299,000.00 together with any adjustments required by the terms of the contract;

(iii)    The defendants deliver possession of the land to the plaintiff.

3.      Order that paragraph 2 of this order be stayed:-

(a)     for a period of 28 days, and

(b)     in the event that the defendants file a Notice of Appeal in respect of the judgment delivered 15 December 2004 in this proceeding, until the determination of that Appeal.

4.      Order that the defendants pay the costs of the Plaintiff of the application and of the action to be assessed.

CATCHWORDS:

CONTRACTS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS – where payment was to be made “within seven days after” a specified event – when the seven days commenced to run – where there is inconsistency between special and standard conditions of contract – effect of inconsistency

EQUITY – SPECIFIC PERFORMANCE – PARTICULAR CONTRACTS - SALE OF LAND - where defendant purported to terminate contract in consequence of alleged breach by plaintiff – whether plaintiff breached contract – whether termination lawful – whether plaintiff entitled to specific performance

Integrated Planning Act 1997 (Qld), ss 3.5.17, 3.5.18, 3.5.19, 4.1.27
Uniform Civil Procedure Rules 1999 (Qld), r 292

COUNSEL:

PW Hackett for the plaintiff
PT Morrow for the defendants

SOLICITORS:

Colwell Wright for the plaintiff
Linda Phelps &…

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 Gheko Developments P/L v Azzopardi

Details

AGLC: Gheko Developments P/L v Azzopardi [2004] QSC 455
Case: [2004] QSC 455
Decision Date: 15 December 2004

CaseChat Overview and Summary

Gheko Developments P/L sued the Azzopardi defendants for breach of contract and specific performance in relation to a contract for the sale of land. The court had to determine whether the defendants' termination of the contract was lawful, and if the plaintiff was entitled to specific performance. The dispute arose from a contract dated 18 August 2003, for the sale of Lot 1 on RP103512, County of Canning, Parish of Canning, Title Reference 13761122. The defendants argued that the plaintiff breached the contract, justifying termination. The plaintiff contended that the termination was unlawful and sought specific performance. The court found that the defendants' termination was unlawful as the plaintiff did not breach the contract, and the defendants' termination was not justified. The court also found that the plaintiff was entitled to specific performance of the contract. The court ordered that the defendants' termination was unlawful, that the contract be specifically performed, and that the defendants pay the plaintiff's costs. The order for specific performance was stayed for 28 days, or until any appeal was determined.

Orders

Orders of the court

1. Declare that the defendants’ purported termination of the contract on 19 March 2004 was unlawful.

2. Order that the contract between the plaintiff and the defendants dated 18 August 2003 in respect of property described as Lot 1 on RP103512, County of Canning, Parish of Canning, Title Reference 13761122 be specifically performed and carried into execution as follows:-

(a) Settlement take place at Caboolture 14 days after the plaintiff receives Council Approval of Engineer working drawings;

(b) Upon satisfaction of (a) by the plaintiff and at Settlement:-

(i) The plaintiff pay to the defendants the balance purchase price of $1,299,000.00 together with any adjustments required by the terms of the contract in exchange for a memorandum of transfer in registrable form of an estate in fee simple in the property described in the contract as Lot 1 on RP 103512, County of Canning, Parish of Canning, Title Reference 13761122 in favour of the plaintiff together with any Certificate of Title;

(ii) The defendant deliver to the plaintiff a memorandum of transfer in registrable form of an estate in fee simple in the property described in the contract as Lot 1 on RP 103512, County of Canning, Parish of Canning, Title Reference 13761122 in favour of the plaintiff together with any Certificate of Title in exchange for the balance purchase price $1,299,000.00 together with any adjustments required by the terms of the contract;

(iii) The defendants deliver possession of the land to the plaintiff.

3. Order that paragraph 2 of this order be stayed:-

(a) for a period of 28 days, and

(b) in the event that the defendants file a Notice of Appeal in respect of the judgment delivered 15 December 2004 in this proceeding, until the determination of that Appeal.

4. Order that the defendants pay the costs of the Plaintiff of the application and of the action to be assessed.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Gheko Developments P/L v Azzopardi & Ors [2004] QSC 455
PARTIES:	GHEKO DEVELOPMENTS PTY LTD ACN 105 201 563 (plaintiff) v PHILIP AZZOPARDI AND PAULINE AZZOPARDI (defendants)
FILE NO:	BS 3249/04
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	15 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	15 October 2004
JUDGE:	Wilson J
ORDER:	1. Declare that the defendants’ purported termination of the contract on 19 March 2004 was unlawful. 2. Order that the contract between the plaintiff and the defendants dated 18 August 2003 in respect of property described as Lot 1 on RP103512, County of Canning, Parish of Canning, Title Reference 13761122 be specifically performed and carried into execution as follows:- (a) Settlement take place at Caboolture 14 days after the plaintiff receives Council Approval of Engineer working drawings; (b) Upon satisfaction of (a) by the plaintiff and at Settlement:- (i) The plaintiff pay to the defendants the balance purchase price of $1,299,000.00 together with any adjustments required by the terms of the contract in exchange for a memorandum of transfer in registrable form of an estate in fee simple in the property described in the contract as Lot 1 on RP 103512, County of Canning, Parish of Canning, Title Reference 13761122 in favour of the plaintiff together with any Certificate of Title; (ii) The defendant deliver to the plaintiff a memorandum of transfer in registrable form of an estate in fee simple in the property described in the contract as Lot 1 on RP 103512, County of Canning, Parish of Canning, Title Reference 13761122 in favour of the plaintiff together with any Certificate of Title in exchange for the balance purchase price $1,299,000.00 together with any adjustments required by the terms of the contract; (iii) The defendants deliver possession of the land to the plaintiff. 3. Order that paragraph 2 of this order be stayed:- (a) for a period of 28 days, and (b) in the event that the defendants file a Notice of Appeal in respect of the judgment delivered 15 December 2004 in this proceeding, until the determination of that Appeal. 4. Order that the defendants pay the costs of the Plaintiff of the application and of the action to be assessed.
CATCHWORDS:	CONTRACTS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS – where payment was to be made “within seven days after” a specified event – when the seven days commenced to run – where there is inconsistency between special and standard conditions of contract – effect of inconsistency EQUITY – SPECIFIC PERFORMANCE – PARTICULAR CONTRACTS - SALE OF LAND - where defendant purported to terminate contract in consequence of alleged breach by plaintiff – whether plaintiff breached contract – whether termination lawful – whether plaintiff entitled to specific performance Integrated Planning Act 1997 (Qld), ss 3.5.17, 3.5.18, 3.5.19, 4.1.27 Uniform Civil Procedure Rules 1999 (Qld), r 292
COUNSEL:	PW Hackett for the plaintiff PT Morrow for the defendants
SOLICITORS:	Colwell Wright for the plaintiff Linda Phelps &…