Harris & Anor v. Prigg - [2009] QCA 47

SUPREME COURT OF QUEENSLAND

CITATION:

Harris & Anor v Prigg [2009] QCA 47

PARTIES:

MICHAEL RICHMOND HARRIS
RODNEY JOSEPH MAHER
(plaintiffs/applicants/appellants)
v
GARRY LESLIE PRIGG
(defendant/respondent)

FILE NO/S:

Appeal No 11524 of 2008
DC No 100 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)
General Civil Appeal

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

6 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2009

JUDGES:

McMurdo P, Muir JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application for leave to appeal be allowed 1.

The appeal be dismissed with costs2.

CATCHWORDS:

CONVEYANCING – THE CONTRACT AND CONDITIONS OF SALE – OTHER PARTICULAR CONDITIONS – OTHER CASES – where the applicants agreed to purchase from the respondent a unit under a community titles scheme – where the applicants purported to terminate the agreement pursuant to its standard terms because the resort's swimming pool and related structures encroached onto an adjoining parcel of land – whether an encroachment of a structure built mainly on common property and extending onto adjoining land can be described as "an encroachment by structures … from a Lot" within the meaning of "Lot" in a contract for the sale of a lot in the scheme

Body Corporate and Community Management Act 1997 (Qld), s 10, s 35
District Court of Queensland Act 1967 (Qld), s 118
Land Title Act 1994 (Qld), s 41BA, s 41C

Pickering v McArthur[2005] QCA 294, cited

COUNSEL:

S Anderson for the applicants/appellants
L J Nevison for the respondent

SOLICITORS:

Oric Legal for the applicants/appellants
Ferguson Cannon Lawyers for the respondent

McMURDO P:I agree with Muir JA's reasons for granting leave to appeal but dismissing the appeal with costs.

The contract between the parties was in the standard form approved by the Real Estate Institute of Queensland Limited and the Queensland Law Society Inc as being suitable for the sale and purchase of residential lots in a community titles scheme in Queensland. This appeal raises the concern that the present terms of such a contract may not always provide adequate protection to a purchaser of a residential lot in a community title scheme where there is an error in the boundaries of, or encroachment by structures onto or from, or a mistake or omission in describing, not the lot, but the common property under the lot's community titles scheme.

MUIR JA: The applicants apply for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) against a decision of a judge of the District Court given on 6 November 2008.

The issue for determination on the appeal, should leave be granted, is whether an encroachment of a structure built mainly on common property under a community titles scheme and extending onto adjoining land can be described as "an encroachment by structures … from a Lot" within the meaning of "Lot" in…

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.

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Details

Case: [2009] QCA 47
Decision Date: 6 March 2009

CaseChat Overview and Summary

The applicants, Harris and Anor, sought to purchase a unit under a community titles scheme from the respondent, Prigg. The applicants purported to terminate the agreement under its standard terms, claiming that the resort's swimming pool and related structures encroached onto an adjoining parcel of land. They argued that the encroachment constituted a breach of the contract's conditions of sale, specifically the condition relating to encroachment by structures from a lot. The respondent denied the claim and the matter was brought before the court to determine the validity of the applicants' termination of the agreement.

The central issue before the court was whether an encroachment of a structure built mainly on common property and extending onto adjoining land could be described as "an encroachment by structures … from a Lot" within the meaning of "Lot" in a contract for the sale of a lot in the scheme. The court needed to determine if the applicants' termination of the agreement was valid based on the alleged breach of the contract's conditions.

The court found that the applicants' termination of the agreement was not valid. The court held that the definition of "Lot" in the contract did not encompass structures built mainly on common property and extending onto adjoining land. As such, the alleged encroachment did not constitute a breach of the contract's conditions. The court further found that the applicants had failed to establish any other grounds for terminating the agreement. The appeal was dismissed with costs awarded to the respondent.

No further orders were made beyond those mentioned in the catchwords.

Orders

Orders of the court

The application for leave to appeal be allowed 1.

The appeal be dismissed with costs2.

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:	Harris & Anor v Prigg [2009] QCA 47
PARTIES:	MICHAEL RICHMOND HARRIS RODNEY JOSEPH MAHER (plaintiffs/applicants/appellants) v GARRY LESLIE PRIGG (defendant/respondent)
FILE NO/S:	Appeal No 11524 of 2008 DC No 100 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil) General Civil Appeal
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	6 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2009
JUDGES:	McMurdo P, Muir JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The application for leave to appeal be allowed 1. The appeal be dismissed with costs2.
CATCHWORDS:	CONVEYANCING – THE CONTRACT AND CONDITIONS OF SALE – OTHER PARTICULAR CONDITIONS – OTHER CASES – where the applicants agreed to purchase from the respondent a unit under a community titles scheme – where the applicants purported to terminate the agreement pursuant to its standard terms because the resort's swimming pool and related structures encroached onto an adjoining parcel of land – whether an encroachment of a structure built mainly on common property and extending onto adjoining land can be described as "an encroachment by structures … from a Lot" within the meaning of "Lot" in a contract for the sale of a lot in the scheme Body Corporate and Community Management Act 1997 (Qld), s 10, s 35 District Court of Queensland Act 1967 (Qld), s 118 Land Title Act 1994 (Qld), s 41BA, s 41C Pickering v McArthur[2005] QCA 294, cited
COUNSEL:	S Anderson for the applicants/appellants L J Nevison for the respondent
SOLICITORS:	Oric Legal for the applicants/appellants Ferguson Cannon Lawyers for the respondent