Gilfillan v Skein

Case [2022] QDC 65

DISTRICT COURT OF QUEENSLAND

CITATION:

Gilfillan & Anor v Skein & Anor [2022] QDC 65

PARTIES:

CLAIRE COWAN GILFILLAN

(First Appellant)
and
GLENN JAMES GILFILLAN
(Second Appellant)
v

LANA MEREDITH SKEIN

(First Respondent)

and
JEFFREY ALLEN FLEW

(Second Respondent)

FILE NO:

182/2021

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Southport

DELIVERED ON:

3 February 2022 (ex tempore)

DELIVERED AT:

Southport

HEARING DATE:

2 February 2022

JUDGE:

Jackson QC DCJ

ORDER:

1.   The appeal is allowed

2.   The respondents pay the appellants costs of the appeal to be assessed on the standard basis

CATCHWORDS:

APPEAL – CONTRACT LAW – REFUSAL BY MAGISTRATE TO GRANT SUMMARY JUDGMENT – Where the appellants submit that the respondent repudiated a contract on 24 August 2020 – Where the respondent submits that the communication on 24 August 2020 did not amount to a repudiation – Where the appellant submits that the learned magistrate erred in not allowing summary judgment – Whether the appeal should be allowed.

LEGISLATION:

District Court of Queensland Act1967 (Qld)
Magistrates Courts Act1921 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

CASES:

Allesch v Maunz (2000) 203 CLR 172
Coldham-Fussell & Ors v Commissioner of Taxation [2011] QCA 45
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232
Halifax Mortgage Services Ltd v Stepsky [1996] Ch 1
Koompahtoo local Aboriginal land Council v Sanpine Pty Ltd and Anor (2007) 233 CLR 115
Parsons v Raby [2007] QCA 98

Shepherd v Felt & Textiles of Australia Limited [1931] ALR 194
Teelow v Commissioner of Police [2009] 2 Qd R 489
COUNSEL:

J Faulkner for the appellants

M Taylor for the respondents
SOLICITORS:

Ballantyne Law Group for the appellants

Twomey Dispute Lawyers for the respondents

Introduction

  1. This is an appeal from an order of the Magistrates Court at Southport made on 14 May 2021 refusing to grant summary judgment in favour of the appellants on their claim as well as on the respondents’ counter claim.

  2. The underlying claim by the appellants is for the balance deposit payable on a contract in writing dated 7 July 2020 between the appellants as sellers and the respondents as buyers in respect of a property situated at 3 Spinnaker Court, Currumbin Waters in the State of Queensland.  The appellants’ position is that on 22 July 2020 the building and pest condition to which the contract was subject was satisfied and the contract became unconditional.  The respondents are also said to have been in breach of the obligation to pay the balance deposit by 20 July 2020.  The appellants claim that time was of the essence in respect of that obligation.  It is further claimed that the respondents repudiated by a text message of 24 July 2020 (which is at page 147 of the appeal book).  It is said that at no time did the appellants elect to affirm and instead they continually reserved their rights arising out of the respondents’ breaches and terminated on 10 August 2020 which letter is at page 153 of the…

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AGLC
Gilfillan v Skein [2022] QDC 65
Case
[2022] QDC 65
Decision Date

CaseChat Overview and Summary

The appeal in Gilfillan v Skein concerns a dispute over the validity of a contract termination. The appellants, Gilfillan, argue that the respondent, Skein, repudiated a contract on 24 August 2020, thereby allowing Gilfillan to lawfully terminate the contract. Skein contends that the communication made on 24 August 2020 did not amount to a repudiation and thus, the contract was not lawfully terminated. The case was heard in the Queensland Court of Appeal, which reviewed the magistrate's decision to deny summary judgment in favor of Gilfillan.

The central legal issues the court needed to decide were whether Skein indeed repudiated the contract and if the magistrate correctly exercised her discretion in denying summary judgment. Gilfillan argued that the magistrate erred by not granting summary judgment, claiming Skein's failure to pay a balance deposit by 24 July 2020 constituted a fundamental breach of contract, justifying termination. Skein argued that there was a triable issue regarding the instructions given to their solicitors, which led to the contract becoming unconditional on 22 July 2020. The court had to determine if the magistrate's reliance on these issues was justified and whether they were relevant to the exercise of discretion in granting summary judgment.

The Court of Appeal found that the magistrate's decision contained errors, primarily due to a misstated position regarding the instructions given to the solicitors. The court concluded that the magistrate was misled about the content of the respondents' instructions, which was a critical factor in her decision. The court also noted that the magistrate's consideration of the fact that both parties were represented by the same solicitors and the potential for different instructions being given was not irrelevant or extraneous. Despite these considerations being based on incorrect information, they were important and correctly factored into the magistrate's decision under the then state of the matter. The appeal was allowed, and summary judgment was granted in favor of Gilfillan, with Skein ordered to pay the costs of the appeal.

Orders

Orders of the court

1. The appeal is allowed

2. The respondents pay the appellants costs of the appeal to be assessed on the standard basis

Background

Background to the litigation

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Evidence

Evidence Before The Court

This appeal is by way of rehearing.[2] In such an appeal the Court must make up its own mind on the evidence that was before the Magistrates Court giving “due deference and weight” to the learned magistrate’s view. To succeed the appellant must show the decision appealed from was wrong.[3] As to this, in Teelow v Commissioner of Police [2009] 2 Qd R 489 Muir JA stated with my underlining at [4]:“It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is a result of some legal, factual or discretionary error …”[2]JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] at [6] per McGill SC DCJ.[3]See Parsons v Raby [2007] QCA 98 at [24]; Allesch v Maunz (2000) 203 CLR 172 at 180-1; and Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4] per Muir JA By virtue of r 785, r 766(1) is also applicable. Rule 766(1) provides for the general powers of, on this occasion, this court with respect to the appeal. This is an appeal against a refusal to grant summary judgment. The principles relevant on an application for summary judgment whether under rule 292 or 293 of the UCPR are well-known and need not be set out. Such a decision is a discretionary one with such discretion only arising for consideration upon satisfaction of the two conditions precedent being whether or not the respondent to the application has no real prospects and whether or not there is a need for a trial. There remains a residual discretion as is clear from Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at [45] per Williams JA with whom the President and Atkinson J agreed.Grounds of appeal The notice of appeal filed 6 June 2021 claims that:(a)the learned Magistrate erred in fact and in law in wrongly exercising discretion under rule 293 dismissing the appellants’ application for summary judgment essentially on the basis that the respondents had failed to pay the balance deposit on 20 July 2020 and otherwise repudiated the contract on 24 July 2020 such that the contract was lawfully terminated on 10 August 2020;(b)the learned Magistrate erred as a matter of law by relying on matters irrelevant to the exercise of her Honour’s discretion being that the appellants and the respondents were represented by the same solicitors and that the position may have been different if there had been solicitors for each of the sellers and the buyers and that there was a triable issue as to the instructions given by the respondents to their solicitors preceding the notification on 22 July 2020. The orders sought are that the appeal be allowed and summary judgment be granted with costs.Submissions on appealThe appellants The appellants contend that:(a)they lawfully terminated the contract on 24 August 2020 based on the respondents’ fundamental breaches of contract including their repudiation;[4](b)Her Honour failed to give any weight to the respondents’ failure to pay the balance deposit by 20 July 2020 (a fundamental breach of contract) which entitled the appellants to terminate by their notice on 10 August 2020 and as the contract became unconditional on 22 July 2020, the respondents repudiated the contract on 24 July 2020 by stating that they were not proceeding with the contract;(c)the learned Magistrate’s failure to give weight to these “undisputed and insurmountable facts” constituted a fundamental error of law. Before her Honour, as will be seen from matters I address shortly, there was a serious dispute as to whether the contract had become unconditional on 22 July 2020. It also seems to me arguable that there was waiver of essentiality of time with respect to the requirement to pay the balance deposit or that the appellants elected to affirm the contract notwithstanding that breach;(d)in paragraph [17] of the appellants’ outline of argument it is identified that the fundamental premise for her Honour’s refusal was that the appellants and respondents were represented by the same solicitors and in her view there was a triable issue as to the content of the respondents’ instructions to those solicitors underlying the notice to “go unconditional on 22 July 2020”. I accept that this was the fundamental premise of the judgment and as I have said it was wrong because her Honour was told the wrong thing by the respondents; (e)that those cornerstones of her Honour’s decision were both irrelevant and extraneous to the exercise of discretion because, as seems to be the submission, a purchaser is bound by the communication given by its solicitor - the same solicitor (that is, itself) on the other side of the transaction even if the solicitor had been given different instructions to those purportedly conveyed.[5] As will be clear from what I will shortly address I do not accept that these matters were irrelevant or extraneous. They were clearly important but unfortunately they were based on the misstated position as to the instructions given in relation to the 22 July 2020 letter. It is important that I continue to refer to them though because, I do not want it to be thought that I otherwise would have accepted the appellants’ criticisms of decision as to this issue and because, in my view, it is important to recognise that the decision below was in my view correct on the then state of the matter.[4]See [2] of the appellants’ outline of argument.[5]See [17], [1`8], [19], [20] and [21] of the appellants’ outline of argument.The respondents’ submissions

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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