Grieve v Enge - [2006] QSC 37

SUPREME COURT OF QUEENSLAND

CITATION:

Grieve v Enge [2006] QSC 037

PARTIES:

David John Grieve and Leanne Lorraine Grieve (Plaintiffs)

And

Henry Enge (1^st Defendant)

Linda Rose Enge (2^nd Defendant)

FILE NO/S:

S254 of 2003

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Townsville Supreme Court

DELIVERED ON:

3 March 2006

DELIVERED AT:

Townsville

HEARING DATE:

5-6 December 2005 and 22-23 February 2006

JUDGE:

Cullinane J

ORDER:

Declare that contract be specifically performed.

Declare that the 2^nd Defendant holds her interest subject to the interests of the plaintiffs as purchasers.

CATCHWORDS:

BREACH OF CONTRACT - SPECIFIC PERFORMANCE - where the Plaintiffs seek specific performance of a contract entered into between the plaintiffs and the first defendant

TERMINATION OF CONTRACT - REPUDIATION - FAILURE TO GIVE NOTICE OF FINANCE - whether the first defendant entitled to terminate for failure of plaintiffs to give notice of finance even though the defendant repudiates contract

TRANSFER OF PROPERTY TO DEFEAT INTEREST - EQUITABLE INTEREST - whether the transfer of the property from the first defendant to himself and the second defendant was done fraudulently to defeat the plaintiffs’ claim - whether the plaintiffs hold an equitable interest in the property so far as the second defendant’s interest.

Land Title Act 1994 (Qld)
Property Agents and Motor Dealers Act 2000 (Qld)

Bahr v Nicholay (No 2) (1987-1988) 164 CLR 604, considered
Basma v Weekes [1950] AC 441, cited
BP Refinery(Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 261, considered
Foran and Anor v Wightand Anor (1989) 168 CLR 385 considered
Grubb v Toomey (2003) TASSC 131 discussed
Kelly v Desnoe [1985] 2 QdR 477, considered
Mackay v Dickand Anor [1881] 6 AC 251, cited
Nyhuis v Anton [1980] QdR 34, considered
Rymark Australia Development Consultants Pty Ltd v Draper [1977] QdR 336, discussed
Tara Shire Council v Garner [2003] 1 QdR 556, cited
Waimiha Sawmilling Company Limited (in liq) v Waione Timber Company Limited [1926] AC 101, cited

COUNSEL:

Mr Stuart Durward SC for the Plaintiffs

Mr Anthony Moon for the Defendants

SOLICITORS:

Groves and Clark (Bowen) for the Plaintiffs

Connolly Suthers for the Defendants

[1] The plaintiffs seek specific performance of (or appropriate declaratory relief in relation to) a contract entered into between the plaintiffs and the first defendant on 15 July 2002 for the sale by the first defendant to the plaintiffs of land described as Lot 9720 on Crown Plan B66149 County of Herbert Parish of Pring, situated at 7 Aveccinia Street, Rose Bay, Bowen for the sum of $170,000. Alternative relief is sought in the form of damages.

[2] There is a claim against the second defendant who is now a registered proprietor of the subject land seeking a declaration that she holds her interest subject to the interest of the plaintiffs. It is alleged that she took a transfer of a joint interest in the land knowing of the plaintiff’s interest and with the intention of defeating that interest.

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 Grieve v Enge

Details

AGLC: Grieve v Enge [2006] QSC 37
Case: [2006] QSC 37
Decision Date: 3 March 2006

CaseChat Overview and Summary

Grieve v Enge involved the plaintiffs, Grieve, seeking specific performance of a contract for the purchase of property from the first defendant, Enge. The second defendant, also involved in the transfer of the property, was joined in the proceedings. The plaintiffs claimed that Enge was not entitled to terminate the contract due to their failure to provide notice of finance, especially since Enge had also repudiated the contract. Furthermore, the plaintiffs argued that the transfer of the property to the second defendant was fraudulent and intended to defeat their claim, and that they hold an equitable interest in the property as against the second defendant’s interest.

The court had to determine whether Enge could lawfully terminate the contract for the plaintiffs' failure to provide notice of finance, despite Enge's own repudiation of the contract. Additionally, the court needed to assess whether the transfer of the property was fraudulent and designed to thwart the plaintiffs' claim, and if the plaintiffs held an equitable interest in the property against the second defendant's interest.

The court held that Enge was not entitled to terminate the contract based on the plaintiffs' failure to provide notice of finance, as Enge had already repudiated the contract. The court found that the transfer of the property to the second defendant was fraudulent and intended to defeat the plaintiffs' claim. Consequently, the court declared that the contract should be specifically performed and that the second defendant holds her interest subject to the interests of the plaintiffs as purchasers.

The court ordered that the contract be specifically performed and that the second defendant holds her interest in the property subject to the interests of the plaintiffs as purchasers.

Orders

Orders of the court

Declare that contract be specifically performed.

Declare that the 2nd Defendant holds her interest subject to the interests of the plaintiffs as purchasers.

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.

CITATION:	Grieve v Enge [2006] QSC 037
PARTIES:	David John Grieve and Leanne Lorraine Grieve (Plaintiffs) And Henry Enge (1^st Defendant) Linda Rose Enge (2^nd Defendant)
FILE NO/S:	S254 of 2003
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	Townsville Supreme Court
DELIVERED ON:	3 March 2006
DELIVERED AT:	Townsville
HEARING DATE:	5-6 December 2005 and 22-23 February 2006
JUDGE:	Cullinane J
ORDER:	Declare that contract be specifically performed. Declare that the 2^nd Defendant holds her interest subject to the interests of the plaintiffs as purchasers.
CATCHWORDS:	BREACH OF CONTRACT - SPECIFIC PERFORMANCE - where the Plaintiffs seek specific performance of a contract entered into between the plaintiffs and the first defendant TERMINATION OF CONTRACT - REPUDIATION - FAILURE TO GIVE NOTICE OF FINANCE - whether the first defendant entitled to terminate for failure of plaintiffs to give notice of finance even though the defendant repudiates contract TRANSFER OF PROPERTY TO DEFEAT INTEREST - EQUITABLE INTEREST - whether the transfer of the property from the first defendant to himself and the second defendant was done fraudulently to defeat the plaintiffs’ claim - whether the plaintiffs hold an equitable interest in the property so far as the second defendant’s interest. Land Title Act 1994 (Qld) Property Agents and Motor Dealers Act 2000 (Qld) Bahr v Nicholay (No 2) (1987-1988) 164 CLR 604, considered Basma v Weekes [1950] AC 441, cited BP Refinery(Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 261, considered Foran and Anor v Wightand Anor (1989) 168 CLR 385 considered Grubb v Toomey (2003) TASSC 131 discussed Kelly v Desnoe [1985] 2 QdR 477, considered Mackay v Dickand Anor [1881] 6 AC 251, cited Nyhuis v Anton [1980] QdR 34, considered Rymark Australia Development Consultants Pty Ltd v Draper [1977] QdR 336, discussed Tara Shire Council v Garner [2003] 1 QdR 556, cited Waimiha Sawmilling Company Limited (in liq) v Waione Timber Company Limited [1926] AC 101, cited
COUNSEL:	Mr Stuart Durward SC for the Plaintiffs Mr Anthony Moon for the Defendants
SOLICITORS:	Groves and Clark (Bowen) for the Plaintiffs Connolly Suthers for the Defendants