Greenhill One Pty Ltd v Dreamtech Designs Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Greenhill One Pty Ltd v Dreamtech Designs Pty Ltd & Anor [2019] QSC 20

PARTIES:

GREENHILL ONE PTY LTD

(plaintiff)

v
DREAMTECH DESIGNS PTY LTD & SAN CRISTOBAL PTY LTD

(first defendants)

FILE NO:

BS742 of 2018

DIVISION:

Trial Division

PROCEEDING:

Summary judgment application

DELIVERED ON:

18 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

27 and 30 November 2018

JUDGE:

Mullins J

ORDER:

1.   The application for summary judgment is dismissed.

2.   Adjourn the question of costs to a date to be fixed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – GENERALLY – where purchaser of a unit purported to terminate the contract for failure to comply with s 206(1) of the Body Corporate and Community Management Act 1997 (Qld) and sued the vendors for a declaration that the purchaser was entitled to a refund of the deposit – where vendors denied there was a failure to comply with s 206(1) and counterclaimed for an order that the deposit held by the agent be released to the vendors and for damages for breach of contract – where vendors applied for summary judgment on the purchaser’s claim and their counterclaim for an order the agent pay the deposit to the vendors and for damages for breach of contract to be assessed – whether the purchaser has no real prospect of showing that the vendors failed to comply with s 206(1) – whether there is no need for a trial of the claim or the counterclaim

Body Corporate and Community Management Act 1997 (Qld), s 205D, s 206, s 207, s 208, s 210, s 318
Electronic Transactions (Queensland) Act 2001 (Qld), s 4, s 11, s 14
Uniform Civil Procedure Rules 1999 (Qld), r 292, r 293

Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202; [2009] QCA 135, considered
Gray v Morris [2004] 2 Qd R 118; [2004] QCA 5, considered
Luxottica Retail Australia Pty Ltd v 136 Queen Street Pty Ltd trustee under instrument No 04350946 [2011] QSC 162, considered
Pazcuff Pty Ltd v Farmilo [2010] 2 Qd R 268; [2009] QSC 230, followed
Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015] QSC 119, considered

COUNSEL:

A P J Carroll (Sol) for the plaintiff

M J Campbell (direct brief) for the first defendants (on 27 November 2018)
D Kelly, director of each first defendant, with leave (on 30 November 2018) for the first defendants

SOLICITORS:

Carroll Legal & Compliance for the plaintiff

  1. The plaintiff as purchaser entered into a contract with the first defendants as the vendors to purchase Lot 32 in BUP3465 in the development known as St Tropez Resort for the sum of $766,500. The plaintiff purported to terminate the contract with the first defendants on the basis that the first defendants did not provide the disclosure statement required by…

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Details
Case
[2019] QSC 20
Decision Date

CaseChat Overview and Summary

Greenhill One Pty Ltd sought a declaration that it was entitled to a refund of a deposit pursuant to a contract for the sale of a unit. Dreamtech Designs Pty Ltd denied the claim and counterclaimed for an order that the deposit held by the agent be released to the vendors and for damages for breach of contract. Dreamtech Designs Pty Ltd applied for summary judgment on Greenhill One Pty Ltd's claim and its counterclaim for an order that the deposit held by the agent be released to the vendors and for damages for breach of contract to be assessed. The court was required to decide whether the applicant had discharged the onus of showing that there was no real prospect that the plaintiff would succeed on its claim or the counterclaim. The court found that Dreamtech Designs Pty Ltd had not discharged the onus of showing an entitlement to summary judgment, in the light of the current state of the evidence and the allegations pleaded in the defence and counterclaim. The court dismissed the application for summary judgment and adjourned the question of costs to a date to be fixed.

Orders

Orders of the court

1. The application for summary judgment is dismissed.

2. Adjourn the question of costs to a date to be fixed.

Background

Background to the litigation

The first defendants therefore seek summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) against the plaintiff in respect of the plaintiff’s claim and summary judgment pursuant to r 292 of the UCPR against the plaintiff on the first defendants’ counterclaim for return of the deposit of $41,000 held by the agent, interest on the sum of $41,000, and damages for breach of contract to be assessed. (The first defendants make an alternative claim in their counterclaim for damages for misleading and deceptive conduct, but the summary judgment application does not rely on that alternative claim.) Relevant facts The facts that I will summarise are those taken from the affidavits relied on by both parties for the purpose of the application. It was apparent that the allegations made by the plaintiff in a shorthand way in the statement of claim overlooked the first defendants’ counter offer made on 14 June 2017 that was a critical event for the purpose of the first defendants’ summary judgment application. As the plaintiff did not bring a summary judgment application, the fact that its statement of claim does not presently accord with the factual matrix now asserted by the plaintiff did not preclude consideration of the first defendants’ application. Ms Deborah Kelly is a director of Dreamtech Designs Pty Ltd and the other director is her husband Mr Gregg Thompson. Ms Kelly is the sole director and shareholder of the other first defendant San Cristobal Pty Ltd. At all relevant times it appears Ms Kelly was acting on behalf of both first defendants. On 7 June 2017 the first defendants received contract documents containing a signed offer from the plaintiff to purchase lot 32 via an email from PRD Nationwide Surfers Paradise (PRD) to Ms Kelly. The offer had been signed by Mr Jason Hague who was then the director of the plaintiff and was dated 24 May 2017. It appears from the form of the contract that PRD was the seller’s agent. Mr Scott who is the manager of PRD deposed to being the first defendants’ agent for the sale of lot 32. It does not appear there was any attempt by PRD to ensure the first defendants’ obligations under s 206(1) of the Act were complied with, as the plaintiff had signed the contract before the disclosure statement was even tendered by PRD to the first defendants for signature. That may be explicable by the fact that Mr Hague deposed to receiving the draft contract on 24 May 2017 from real estate agent Amber Werchon who it appears was acting as the purchaser’s agent. The email from PRD instructed Ms Kelly as follows:“Please sign and initial where indicated. Once complete please scan and email by return.” Two forms of stamp had been used by PRD on the documents. One stamp “INITIAL HERE” was stamped at the right hand foot of the printed form of contract, including the proforma terms of contract for residential lots in a Community Title Scheme, and the right hand foot of the two page disclosure statement. The other stamp “SIGN HERE” was affixed at the place for execution by each of the buyer and seller in the consent to receive electronic communication form, the contract and the second page of the disclosure statement.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the meantime, however, if the parties choose to do so, there are aspects of the evidence that need to be clarified in relation to the conversation between Mr Scott and Mr Hague on 14 June 2017. Conclusion I am therefore satisfied that the first defendants have not discharged the onus of showing an entitlement to summary judgment, in the light of the current state of the evidence and the allegations pleaded in the defence and counterclaim. I will therefore dismiss the application for summary judgment. After publishing these reasons, I will give the parties an opportunity to agree on a timetable for making written submissions on costs. If appropriate to do so, I will then determine the question of costs on the papers. In order to facilitate this, I will adjourn the question of costs to a date to be fixed. Subject to receiving the parties’ submissions on costs, my inclination is that the first defendants should pay the plaintiff’s costs of the hearing on 30 November 2018, but that otherwise the parties’ costs of the application should be each party’s costs in the proceeding. The hearing on the second day did not progress the matter, as the first defendants had not obtained a further affidavit from Mr Scott. As the affidavits relied on by both parties were deficient in dealing with the conversation between Mr Scott and Mr Hague on 14 June 2017 before the counter offer was accepted by Mr Hague on behalf of the plaintiff, I suggest that the party which ultimately succeeds in the proceeding should receive the costs of the summary judgment application (apart from the hearing on 30 November 2018).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.