Glynn v Brown - [2016] QDC 313

DISTRICT COURT OF QUEENSLAND

CITATION:

Glynn v Brown & Anor [2016] QDC 313

PARTIES:

MICHELE GLYNN
(applicant)

v

MALCOLM BROWN
(first respondent)

and

LAND PASTURES QUEENSLAND PTY LTD

ACN 161 344 896
(second respondent)

FILE NO/S:

DC No 1207 of 2016

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

2 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

16 November 2016; 17 November 2016

JUDGE:

Reid DCJ

ORDER:

1.   That the Contract of Sale dated 29 July 2016 between the applicant as vendor and the second respondent as purchaser ought to be specifically performed and carried into execution.

2.   That subject to other order of the court, settlement of the Contract of Sale be effected on 14 December 2016.

3.   That the parties agree on settlement figures to enable that settlement to be effected.

4.   That the settlement be effected on 14 December 2016 at a time and at a place suitable to the ANZ Banking Group.

5.   The parties be at liberty, upon giving reasonable notice to the other, to list the matter before me for any ancillary orders to enable settlement to be effected.

6.   That the applicant pay the respondents’ costs of and incidental to this application including any reserved costs, to be assessed.

7.   That the applicant’s claim be dismissed.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – PERFORMANCE – where the applicant and respondents entered into a residential tenancy with a call option agreement- where the respondents exercised an option to purchase a property from the applicant – where the applicant sent invalid notices purporting to terminate – where the respondents ceased to meet rental obligations under the tenancy arrangement – where the applicant and respondents entered into a second contract for the sale of the property – where the applicant frustrated settlement and purported to terminate the agreement – whether the contract can be specifically performed – whether the respondents are entitled to equitable damages

Body Corporate and Community Management Act1997 (Qld) s 206

Corporations Act 2001 (Cth) s 601AH

Civil Proceedings Act 2011 (Qld) s 8

Property Law Act1974 (Qld) s 84

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 277

Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57, followed

Tropical Traders Ltd v Goonan & Anor (1964) 111 CLR 41, followed

Barclay v Messenger (1874) 43 LJ Ch 449, considered

Re Future Life Enterprises Pty Ltd (1994) 33 NSWLR 559, considered

Re Amtrao Pty Ltd (1994) 13 ACSR 654, considered

Frankcombe v Foster Investments Pty Ltd [1978] 2 NSWLR 41, followed

Sharjade Pty Ltd v Commonwealth of Australia [2009] NSWCA 373, followed

COUNSEL:

The applicant appeared on her own behalf

M P Amerena for the First and Second respondents

SOLICITORS:

The applicant appeared on her own behalf

Accuro Legal for the First and Second respondents

Introduction

The applicant, Michele Glynn (also known as Michele Carrasco) and the second respondent, Land Pastures Queensland…

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 Glynn v Brown

Details

AGLC: Glynn v Brown [2016] QDC 313
Case: [2016] QDC 313
Decision Date: 2 December 2016

CaseChat Overview and Summary

Glynn, the applicant, brought an action against Brown, the respondents, in the Supreme Court of New South Wales, seeking to terminate a residential tenancy agreement and a subsequent contract of sale for a property. Glynn argued that Brown had breached the tenancy agreement by ceasing to meet their rental obligations after exercising a call option to purchase the property. Glynn also contended that Brown had frustrated the settlement of the contract of sale by refusing to complete the sale. Brown, in turn, argued that Glynn had sent invalid notices purporting to terminate the tenancy and the contract of sale, and that they were entitled to specific performance of the contract of sale and equitable damages for Glynn's breach of contract.

The court had to determine whether Glynn's notices to terminate the tenancy and the contract of sale were valid, and if not, whether Brown were entitled to specific performance of the contract of sale and equitable damages. The court held that Glynn's notices were invalid and that Brown were entitled to specific performance of the contract of sale. The court also held that Brown were entitled to equitable damages for Glynn's breach of contract, but that the amount of damages would be determined at a later date.

Accordingly, the court ordered that the contract of sale be specifically performed and that settlement be effected on 14 December 2016. The court also ordered that Glynn pay Brown's costs of and incidental to the application. The court dismissed Glynn's claim to terminate the tenancy and the contract of sale.

Orders

Orders of the court

1. That the Contract of Sale dated 29 July 2016 between the applicant as vendor and the second respondent as purchaser ought to be specifically performed and carried into execution.

2. That subject to other order of the court, settlement of the Contract of Sale be effected on 14 December 2016.

3. That the parties agree on settlement figures to enable that settlement to be effected.

4. That the settlement be effected on 14 December 2016 at a time and at a place suitable to the ANZ Banking Group.

5. The parties be at liberty, upon giving reasonable notice to the other, to list the matter before me for any ancillary orders to enable settlement to be effected.

6. That the applicant pay the respondents’ costs of and incidental to this application including any reserved costs, to be assessed.

7. That the applicant’s claim be dismissed.

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:	Glynn v Brown & Anor [2016] QDC 313
PARTIES:	MICHELE GLYNN (applicant) v MALCOLM BROWN (first respondent) and LAND PASTURES QUEENSLAND PTY LTD ACN 161 344 896 (second respondent)
FILE NO/S:	DC No 1207 of 2016
DIVISION:	Civil
PROCEEDING:	Originating Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	2 December 2016
DELIVERED AT:	Brisbane
HEARING DATE:	16 November 2016; 17 November 2016
JUDGE:	Reid DCJ
ORDER:	1. That the Contract of Sale dated 29 July 2016 between the applicant as vendor and the second respondent as purchaser ought to be specifically performed and carried into execution. 2. That subject to other order of the court, settlement of the Contract of Sale be effected on 14 December 2016. 3. That the parties agree on settlement figures to enable that settlement to be effected. 4. That the settlement be effected on 14 December 2016 at a time and at a place suitable to the ANZ Banking Group. 5. The parties be at liberty, upon giving reasonable notice to the other, to list the matter before me for any ancillary orders to enable settlement to be effected. 6. That the applicant pay the respondents’ costs of and incidental to this application including any reserved costs, to be assessed. 7. That the applicant’s claim be dismissed.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – PERFORMANCE – where the applicant and respondents entered into a residential tenancy with a call option agreement- where the respondents exercised an option to purchase a property from the applicant – where the applicant sent invalid notices purporting to terminate – where the respondents ceased to meet rental obligations under the tenancy arrangement – where the applicant and respondents entered into a second contract for the sale of the property – where the applicant frustrated settlement and purported to terminate the agreement – whether the contract can be specifically performed – whether the respondents are entitled to equitable damages Body Corporate and Community Management Act1997 (Qld) s 206 Corporations Act 2001 (Cth) s 601AH Civil Proceedings Act 2011 (Qld) s 8 Property Law Act1974 (Qld) s 84 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 277 Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57, followed Tropical Traders Ltd v Goonan & Anor (1964) 111 CLR 41, followed Barclay v Messenger (1874) 43 LJ Ch 449, considered Re Future Life Enterprises Pty Ltd (1994) 33 NSWLR 559, considered Re Amtrao Pty Ltd (1994) 13 ACSR 654, considered Frankcombe v Foster Investments Pty Ltd [1978] 2 NSWLR 41, followed Sharjade Pty Ltd v Commonwealth of Australia [2009] NSWCA 373, followed
COUNSEL:	The applicant appeared on her own behalf M P Amerena for the First and Second respondents
SOLICITORS:	The applicant appeared on her own behalf Accuro Legal for the First and Second respondents