Grieve v Enge

Case [2006] QCA 213

SUPREME COURT OF QUEENSLAND

CITATION:

Grieve & Anor v Enge & Anor [2006] QCA 213

PARTIES:

DAVID JOHN GRIEVE
(plaintiff/respondent)
LEANNE LORRAINE GRIEVE
(plaintiff/respondent)
v
HENRY ENGE
(defendant/appellant)
LINDA ROSE ENGE
(defendant/appellant)

FILE NO/S:

Appeal No 2706 of 2006
SC No 254 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

16 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2006

JUDGES:

de Jersey CJ, McMurdo P and Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   That the appeal be dismissed

2.   That the appellants pay the respondents’ costs of the appeal to be assessed.

CATCHWORDS:

CONTRACTS – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDATION – GENERAL PRINCIPLES – contract conditional on finance – finance not obtained – purchasers’ failure to notify not indicative of absence of readiness, willingness and ability to complete, because of vendors’ precedent repudiation – also, vendors’ denial of access to property to facilitate preparation of valuation breached vendors’ fundamental obligation to cooperate – specific performance available

Land Title Act 1994 (Qld), s 184
Property Agents and Motor Dealers Act 2000 (Qld), s 365

BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, cited
Butt v M’Donald (1896) 7 QLJ 68, applied
Foran v Wight (1989) 168 CLR 385, explained
Grubb v Toomey [2003] TASSC 131, considered
Jackson Nominees P/L v Hanson Building Products P/L [2006] QCA 126; Appeal No 6093 of 2005, 21 April 2006, cited
Kelly v Desnoe [1985] 2 Qd R 477, distinguished
Mackay v Dick (1881) 6 App Cas 251, applied
Nyhuis v Anton [1980] Qd R 34, applied
Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235, applied
Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126, cited
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596, considered

COUNSEL:

A J Moon for the applicant
S G Durward SC for the respondent

SOLICITORS:

Connolly Suthers for the applicant
Groves and Clark for the respondent

  1. de JERSEY CJ:  The appellants and the respondents are, respectively, spouses.  The proceeding concerns a residential property at 7 Avicennia Street, Rose Bay, Bowen.  The respondents claimed specific performance of a contract in writing by which they agreed to purchase certain property from the then registered proprietor, the male appellant (Mr Enge) for $170,000. 

The Trial Judge’s approach, in summary

  1. The learned trial Judge held, in light of s 365 of the Property Agents and Motor Dealers Act 2000 (Qld), that the respondents and Mr Enge became bound by the contract on the afternoon of 17 July 2002 when the plaintiffs first received a copy of the signed contract. On that day, as his Honour found, Mr Enge repudiated the contract. The respondents did not accept that repudiation.

  1. The contract was conditional upon…

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AGLC
Grieve v Enge [2006] QCA 213
Case
[2006] QCA 213
Decision Date

CaseChat Overview and Summary

The case of Grieve v Enge involved a dispute between the plaintiffs, who were the buyers, and the defendants, who were the sellers, over a contract for the sale of property. The contract was conditional upon the buyers obtaining finance, and the buyers failed to complete the purchase because they were unable to secure the necessary financing. The buyers sought specific performance of the contract, and the sellers argued that the buyers had repudiated the contract by failing to notify them of their inability to secure finance. The case was heard in the Supreme Court of Victoria.

The central issue before the court was whether the buyers had repudiated the contract by their failure to notify the sellers of their inability to secure finance, and whether the sellers were entitled to terminate the contract on that basis. The court also had to determine whether the sellers' denial of access to the property to facilitate the preparation of a valuation constituted a breach of the sellers' fundamental obligation to cooperate with the buyers. Furthermore, the court had to consider whether specific performance was an appropriate remedy in these circumstances.

In reaching its decision, the court held that the buyers' failure to notify the sellers of their inability to secure finance was not indicative of their absence of readiness, willingness, and ability to complete the contract, as the sellers had already repudiated the contract by denying access to the property. The court found that the sellers' denial of access to the property constituted a breach of their fundamental obligation to cooperate, and that this breach entitled the buyers to specific performance of the contract. The court dismissed the appeal and ordered the buyers to pay the sellers' costs of the appeal.

In conclusion, the court found that the sellers were not entitled to terminate the contract on the basis of the buyers' failure to notify them of their inability to secure finance, as the sellers had already repudiated the contract. The court also found that the sellers' denial of access to the property constituted a breach of their fundamental obligation to cooperate, and that specific performance was an appropriate remedy in these circumstances. The court dismissed the appeal and ordered the buyers to pay the sellers' costs of the appeal.

Orders

Orders of the court

1. That the appeal be dismissed

2. That the appellants pay the respondents’ costs of the appeal to be assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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