Legal Research
Cases
Gheko Developments Pty Ltd v Azzopardi

Gheko Developments Pty Ltd v Azzopardi

Case [2005] QCA 283 12 August 2005

Breach of Contract

Repudiation & Termination

Development Control

Consents, Approvals and Permits

Contract Law

Planning & Development Law

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

Gheko Developments P/L v Azzopardi & Anor [2005] QCA 283

PARTIES:

GHEKO DEVELOPMENTS PTY LTD ACN 105 201 563
(plaintiff/respondent)
v
PHILIP AZZOPARDI and PAULINE AZZOPARDI
(defendants/appellants)

FILE NO/S:

Appeal No 274 of 2005
SC No 3249 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

28 July 2005

JUDGES:

McMurdo P, McPherson and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal allowed with costs
2. Orders below set aside
3. Judgment to be given in favour of the defendants
in proceedings BS3249 of 2004 together with costs
of and incidental to those proceedings including
reserved costs if any

CATCHWORDS:

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - COMMENCEMENT OF CONSENT - where appellants had agreed to sell a parcel of land to the respondent - where a condition of the contract of sale was that the respondent had an obligation to pay $50,000 to the appellants as a deposit within seven days of receiving a "development approval … which is satisfactory to [the respondent] in all respects" - where the respondent received a decision notice from the relevant local authority approving development but engaged in further negotiations with the local authority as to the nature of the conditions attached to the approval - where negotiations did not conclude until more than seven days after the decision notice had been received - where no changes were made to the conditions as a result of these negotiations - whether the time limit of seven days began to run as soon as the decision notice was received or only once the respondent had made it clear that it would take no further steps to attempt to alter the substantive terms of the notice - whether the respondent had breached the terms of the contract of sale

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - REPUDIATION AND NON-PERFORMANCE - WHAT AMOUNTS TO REPUDIATION - where appellants had agreed to sell a parcel of land to the respondent - where a condition of the contract of sale was that the respondent had an obligation to pay "$50,000.00 to the Seller" once certain conditions had been satisfied - where respondent made payment to the appellants' real estate agent rather than directly to the appellants - where the payment to the real estate agent was the only payment made within the applicable time limit - where the appellants' real estate agent was named as the "Deposit Holder" in the contract of sale while the appellants were named as the "Seller" - whether the respondent had satisfied the condition contained in the contract of sale by paying the deposit to the appellants' real estate agent rather than directly to the appellants

Integrated Planning Act 1997 (Qld), s…

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 Pty Ltd v Azzopardi

Details

AGLC: Gheko Developments Pty Ltd v Azzopardi [2005] QCA 283
Case: [2005] QCA 283
Decision Date: 12 August 2005

CaseChat Overview and Summary

Gheko Developments Pty Ltd, an appellant, took legal action against the respondent, Azzopardi, regarding a parcel of land that was the subject of a contract of sale. The dispute centred on whether the respondent had satisfied certain conditions within the contract, including the timely payment of a deposit and the nature of the approval for the development. The matter was heard in the Supreme Court of Queensland.

The primary legal issues before the court were whether the time limit for the deposit payment began when the respondent received the development approval decision notice, or only once the negotiations with the local authority had concluded. Another issue was whether the payment of the deposit to the appellants' real estate agent, rather than directly to the appellants, constituted satisfaction of the contract's terms.

The court held that the time limit for the deposit payment commenced when the respondent received the decision notice and not when the negotiations with the local authority ended. The court also determined that the respondent had not satisfied the terms of the contract by paying the deposit to the real estate agent, as the contract specified that the deposit should be paid directly to the appellants. The court applied principles from relevant authorities such as Brien v Dwyer and Sorrell v Finch to reach its conclusions. Based on these findings, the court ruled in favour of the appellants, setting aside the orders below and directing that judgment be given to the appellants with costs.

Orders

Orders of the court

1. Appeal allowed with costs

2. Orders below set aside

3. Judgment to be given in favour of the defendants

in proceedings BS3249 of 2004 together with costs

of and incidental to those proceedings including

reserved costs if any

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

Gheko Developments Pty Ltd v Azzopardi [2005] QCA 283

Most Recent Citation

Australia Estates Pty Ltd v Cairns City Council [2005] QCA 328

Cases citing this decision · 4 of 4 shown

CEO Department of Main Roads v Club Cavill P/L (ACN 099 023 711)
[2011] QPEC 15 Para 1

…hat is so, there is nothing in Hayes which would lead me to depart from the views expressed above. Gheko Developments Pty Ltd v Azzopardi [2005] QCA 283 is another “contract” case in which Hayes may be said to have been endorsed. However, as McPherson JA said at [10] in Gheko , there was no need or occasion to in…
Vercorp Pty Ltd v Lin
[2006] QSC 419 Para 10

…, 94-95; Micarone v. Perpetual Trustees Australia Pty Ltd (1999) 75 SASR 1, 124-125 at [638]-[640] and Gheko Developments Pty Ltd v Azzopardi [2005] QCA 283 at [13]-[14].…
Smith v Peter and Diana Hubbard Pty Ltd
[2006] NSWCA 109 Para 13

…v Ross (1929) 29 SR(NSW) 382. That position has recently been restated in the context of a real estate agent: Gheko Developments Pty Ltd v Azzopardi [2005] QCA 283 at [13]. Thus, a deposit paid to such an agent, absent express authority, is paid to him or her as stakeholder: Fischer v Parry [1963] VR 97, Henning…
Australia Estates Pty Ltd v Cairns City Council
[2005] QCA 328 Para 1

…ko Developments Pty Ltd v Azzopardi & Anor [3] and Hayes v Walker .[4] Each case will naturally turn on the provisions of the particular contract. [3][2005] QCA 283; Appeal No 274 of 2005, 12 August 2005. [4][2004] QCA 288; (2004) 134 LGERA 290.…

View all 4 citing cases →

Cases cited in this decision · 8 of 8 shown

Gheko Developments P/L v Azzopardi
[2004] QSC 455 Para 1

…purported termination was unlawful and made orders for the specific performance of the contract.[1] [1] Gheko Developments Pty Ltd v Azzopardi & Ors [2004] QSC 455; SC No 3249 of 2004, 15 December 2004.…
Hayes v Walker
[2004] QCA 288 Para 1

…development "approval" could not be taken to be a reference to an approval which remained "inchoate or incipient" until finality was reached under [6][2004] QCA 288; (2004) 134 LGERA 290. s 3.5.19 of the Integrated Planning Act . In that case de Jersey CJ, with whom Jerrard JA agreed, said:[7] [7][2004] QCA 288 a…
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales
[1982] HCA 24 Para 1

…isions are placed and are to be understood as operating, in the sense that that is discussed in Codelfa Construction Pty Ltd v State Rail Authority (1982) 149 CLR 337, 351-352. It is, however, quite another matter to treat sections of the Act (notably those of s 3.5.19 stating when approval takes effect) as incorpora…
Brien v Dwyer
[1978] HCA 50 Para 1

…state agent to accept a deposit before a contract is made, under an agreement “subject to contract”: Sorrell v Finch [1977] AC 728; Brien v Dwyer (1978) 141 CLR 378, 395. But it is not necessary here to examine the extent of an estate agent’s implied authority, if any, to receive a deposit under a contract to sell la…
Gange v Sullivan
[1966] HCA 55 Para 1

…if not satisfied with the terms and conditions on which, in this case, the land is able to be subdivided. See, for example, Gange v Sullivan (1966) 116 CLR 418, 429-441; and cf Meehan v Jones (1982) 149 CLR 571. In some cases there would, one would expect, be an implied obligation on the buyer to inform the seller t…
Meehan v Jones
[1982] HCA 52 Para 1

…which, in this case, the land is able to be subdivided. See, for example, Gange v Sullivan (1966) 116 CLR 418, 429-441; and cf Meehan v Jones (1982) 149 CLR 571. In some cases there would, one would expect, be an implied obligation on the buyer to inform the seller that it was satisfied or not with the terms of the a…
[1977] AC 728
[1977] AC 728 Para 1

…no general authority in an estate agent to accept a deposit before a contract is made, under an agreement “subject to contract”: Sorrell v Finch [1977] AC 728; Brien v Dwyer (1978) 141 CLR 378, 395. But it is not necessary here to examine the extent of an estate agent’s implied authority, if any, to receive a d…
Codelfa Construction Pty Ltd v State Rail Authority
69 ER 458 Para 1

…ing legislative matrix in which the contractual provisions are placed and are to be understood as operating, in the sense that that is discussed in Codelfa Construction Pty Ltd v State Rail Authority (1982) 149 CLR 337, 351-352. It is, however, quite another matter to treat sections of the Act (notably those of s 3.5.19 stating when approval takes effect)…

Legislation cited in this decision · 3

Integrated Planning Act 1997 (Qld)
3.5.19 2 mentions (from Para 1)
Integrated Planning and Other Legislation Amendment Act 2003 (Qld)
70 1 mention
Uniform Civil Procedure Rules 1999 (Qld)
1 mention (from Para 1)

CITATION:	Gheko Developments P/L v Azzopardi & Anor [2005] QCA 283
PARTIES:	GHEKO DEVELOPMENTS PTY LTD ACN 105 201 563 (plaintiff/respondent) v PHILIP AZZOPARDI and PAULINE AZZOPARDI (defendants/appellants)
FILE NO/S:	Appeal No 274 of 2005 SC No 3249 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	28 July 2005
JUDGES:	McMurdo P, McPherson and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed with costs 2. Orders below set aside 3. Judgment to be given in favour of the defendants in proceedings BS3249 of 2004 together with costs of and incidental to those proceedings including reserved costs if any
CATCHWORDS:	ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - COMMENCEMENT OF CONSENT - where appellants had agreed to sell a parcel of land to the respondent - where a condition of the contract of sale was that the respondent had an obligation to pay $50,000 to the appellants as a deposit within seven days of receiving a "development approval … which is satisfactory to [the respondent] in all respects" - where the respondent received a decision notice from the relevant local authority approving development but engaged in further negotiations with the local authority as to the nature of the conditions attached to the approval - where negotiations did not conclude until more than seven days after the decision notice had been received - where no changes were made to the conditions as a result of these negotiations - whether the time limit of seven days began to run as soon as the decision notice was received or only once the respondent had made it clear that it would take no further steps to attempt to alter the substantive terms of the notice - whether the respondent had breached the terms of the contract of sale CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - REPUDIATION AND NON-PERFORMANCE - WHAT AMOUNTS TO REPUDIATION - where appellants had agreed to sell a parcel of land to the respondent - where a condition of the contract of sale was that the respondent had an obligation to pay "$50,000.00 to the Seller" once certain conditions had been satisfied - where respondent made payment to the appellants' real estate agent rather than directly to the appellants - where the payment to the real estate agent was the only payment made within the applicable time limit - where the appellants' real estate agent was named as the "Deposit Holder" in the contract of sale while the appellants were named as the "Seller" - whether the respondent had satisfied the condition contained in the contract of sale by paying the deposit to the appellants' real estate agent rather than directly to the appellants Integrated Planning Act 1997 (Qld), s…