Highmist Pty Ltd v Tricare Australia Ltd - [2005] QSC 115

SUPREME COURT OF QUEENSLAND

CITATION:

Highmist Pty Ltd v Tricare Australia Ltd [2005] QSC 115

PARTIES:

HIGHMIST PTY LTD ACN 073507481
(plaintiff)

v

TRICARE AUSTRALIA LIMITED ACN 009657345
(defendant)

FILE NO:

S6456/01

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

1 April 2005
21 April 2005

DELIVERED AT:

Brisbane

HEARING DATES:

30 November, 1, 3 December 2004

JUDGE:

Wilson J

ORDERS:

THE COURT DECLARES that:

1.     The plaintiff is entitled to have the contract for sale of land dated 27 April 1996 between the plaintiff as purchaser and the defendant as vendor specifically performed.

THE COURT ORDERS that:

2.     The defendant execute all such instruments and do all such things necessary in order to specifically perform the said contract.

3.     For the purposes of giving effect to order 2:-

(a)    The defendant at its cost forthwith make, and promptly pursue all such applications as may be required to obtain the reconfiguration of the land formerly described as Lots 20 and 21 on SP 133252 and now described as Lots 20 and 21 on SP 144932 by:-

(i)   subdividing from Lot 20 on SP 144932 the land shown hatched on the attached plan;

(ii) amalgamating the land shown hatched on the attached plan with Lot 21 on SP 144932;

     (“the reconfiguration”).

(b)    The defendant use its best endeavours to secure the approval of the Gold Coast City Council and any other government or statutory authority required to obtain approval for the reconfiguration and for any plan approval of which is required to carry out the reconfiguration (“reconfiguration plan”); and the registration in the Department of Natural Resources and Mines of the lots resulting from the reconfiguration;

(c)    The defendant upon obtaining Gold Coast City Council approval for the reconfiguration and for the reconfiguration plan forthwith: -

(i)   lodge the necessary plan or plans for registration in the Department of Natural Resources and Mines;

(ii) notify the plaintiff’s solicitors on the record of such lodgement.

(d)    The defendant forthwith upon its receipt of notification by the Department of Natural Resources and Mines of the issue by the Department of Natural Resources and Mines of title to the lots resulting from the reconfiguration, notify the solicitors on the record for the plaintiff of the issue of title to the lots resulting from the reconfiguration.

(e)    Settlement of the contract shall take place within (5) business days of the notification to the solicitors for the plaintiff as set out in (d) above.

2.     Any party be at liberty to apply as it may be advised, and that leave be reserved to all parties to apply for the making of any further orders for the purpose of specifically performing the agreement as circumstances may require.

3.     Further proceedings be adjourned to a date to be fixed.

4.     A directions hearing for the further conduct of the proceedings be held on a date agreed between the parties or on not less than seven days notice in writing.

5.     That the defendant pay the plaintiff’s costs of and…

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: [2005] QSC 115
Decision Date: 1 April 2005 21 April 2005

CaseChat Overview and Summary

The case of Highmist Pty Ltd v Tricare Australia Ltd involved a dispute between the parties over the sale of land. The plaintiff, Highmist Pty Ltd, had entered into a contract to purchase land from the defendant, Tricare Australia Ltd. The contract included a plan that differed from the registered plan, which did not provide Highmist with access to the adjacent thoroughfare. Highmist sought to have the contract specifically performed, arguing that there was an implied term that it would have access to the thoroughfare for the purposes of future development of the land.

The court was required to decide whether there was an implied term in the contract that Highmist would have access to the thoroughfare and whether Highmist's assertion of its interpretation of the contract amounted to repudiation. The court also had to consider whether Highmist was entitled to specific performance and whether Tricare was entitled to recision.

The court found that there was an implied term in the contract that Highmist would have access to the thoroughfare for the purposes of future development of the land. The court also found that Highmist's assertion of its interpretation of the contract did not amount to repudiation. Therefore, the court ordered specific performance of the contract, requiring Tricare to execute all necessary instruments to reconfigure the land to provide Highmist with access to the thoroughfare. The court further ordered that Tricare use its best endeavours to secure the necessary approvals and registrations for the reconfiguration. The court also ordered that Tricare pay Highmist's costs of the proceeding, subject to certain conditions.

Orders

Orders of the court

THE COURT DECLARES that:

1. The plaintiff is entitled to have the contract for sale of land dated 27 April 1996 between the plaintiff as purchaser and the defendant as vendor specifically performed.

THE COURT ORDERS that:

2. The defendant execute all such instruments and do all such things necessary in order to specifically perform the said contract.

3. For the purposes of giving effect to order 2:-

(a) The defendant at its cost forthwith make, and promptly pursue all such applications as may be required to obtain the reconfiguration of the land formerly described as Lots 20 and 21 on SP 133252 and now described as Lots 20 and 21 on SP 144932 by:-

(i) subdividing from Lot 20 on SP 144932 the land shown hatched on the attached plan;

(ii) amalgamating the land shown hatched on the attached plan with Lot 21 on SP 144932;

(“the reconfiguration”).

(b) The defendant use its best endeavours to secure the approval of the Gold Coast City Council and any other government or statutory authority required to obtain approval for the reconfiguration and for any plan approval of which is required to carry out the reconfiguration (“reconfiguration plan”); and the registration in the Department of Natural Resources and Mines of the lots resulting from the reconfiguration;

(c) The defendant upon obtaining Gold Coast City Council approval for the reconfiguration and for the reconfiguration plan forthwith: -

(i) lodge the necessary plan or plans for registration in the Department of Natural Resources and Mines;

(ii) notify the plaintiff’s solicitors on the record of such lodgement.

(d) The defendant forthwith upon its receipt of notification by the Department of Natural Resources and Mines of the issue by the Department of Natural Resources and Mines of title to the lots resulting from the reconfiguration, notify the solicitors on the record for the plaintiff of the issue of title to the lots resulting from the reconfiguration.

(e) Settlement of the contract shall take place within (5) business days of the notification to the solicitors for the plaintiff as set out in (d) above.

2. Any party be at liberty to apply as it may be advised, and that leave be reserved to all parties to apply for the making of any further orders for the purpose of specifically performing the agreement as circumstances may require.

3. Further proceedings be adjourned to a date to be fixed.

4. A directions hearing for the further conduct of the proceedings be held on a date agreed between the parties or on not less than seven days notice in writing.

5. That the defendant pay the plaintiff’s costs of and incidental to the proceeding, save for those costs which relate to the matters which have been adjourned, including reserved costs and the costs of and incidental to the further hearing on 20 and 21 April 2005.

6. Upon the plaintiff’s undertaking by its counsel that, in the event the defendant is ultimately successful in having the order for specific performance set aside, the plaintiff will meet the costs incurred by the defendant in performing the order up to the time of lodgement of plans to the Department of Natural Resources and Mines, the defendant’s application for a stay be adjourned to a date to be fixed, to be brought on (if the defendant so desires) immediately before plans for reconfiguration of the new lot are lodged at the Department of Natural Resources and Mines.

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:	Highmist Pty Ltd v Tricare Australia Ltd [2005] QSC 115
PARTIES:	HIGHMIST PTY LTD ACN 073507481 (plaintiff) v TRICARE AUSTRALIA LIMITED ACN 009657345 (defendant)
FILE NO:	S6456/01
DIVISION:	Trial Division
PROCEEDING:	Trial
DELIVERED ON:	1 April 2005 21 April 2005
DELIVERED AT:	Brisbane
HEARING DATES:	30 November, 1, 3 December 2004
JUDGE:	Wilson J
ORDERS:	THE COURT DECLARES that: 1. The plaintiff is entitled to have the contract for sale of land dated 27 April 1996 between the plaintiff as purchaser and the defendant as vendor specifically performed. THE COURT ORDERS that: 2. The defendant execute all such instruments and do all such things necessary in order to specifically perform the said contract. 3. For the purposes of giving effect to order 2:- (a) The defendant at its cost forthwith make, and promptly pursue all such applications as may be required to obtain the reconfiguration of the land formerly described as Lots 20 and 21 on SP 133252 and now described as Lots 20 and 21 on SP 144932 by:- (i) subdividing from Lot 20 on SP 144932 the land shown hatched on the attached plan; (ii) amalgamating the land shown hatched on the attached plan with Lot 21 on SP 144932; (“the reconfiguration”). (b) The defendant use its best endeavours to secure the approval of the Gold Coast City Council and any other government or statutory authority required to obtain approval for the reconfiguration and for any plan approval of which is required to carry out the reconfiguration (“reconfiguration plan”); and the registration in the Department of Natural Resources and Mines of the lots resulting from the reconfiguration; (c) The defendant upon obtaining Gold Coast City Council approval for the reconfiguration and for the reconfiguration plan forthwith: - (i) lodge the necessary plan or plans for registration in the Department of Natural Resources and Mines; (ii) notify the plaintiff’s solicitors on the record of such lodgement. (d) The defendant forthwith upon its receipt of notification by the Department of Natural Resources and Mines of the issue by the Department of Natural Resources and Mines of title to the lots resulting from the reconfiguration, notify the solicitors on the record for the plaintiff of the issue of title to the lots resulting from the reconfiguration. (e) Settlement of the contract shall take place within (5) business days of the notification to the solicitors for the plaintiff as set out in (d) above. 2. Any party be at liberty to apply as it may be advised, and that leave be reserved to all parties to apply for the making of any further orders for the purpose of specifically performing the agreement as circumstances may require. 3. Further proceedings be adjourned to a date to be fixed. 4. A directions hearing for the further conduct of the proceedings be held on a date agreed between the parties or on not less than seven days notice in writing. 5. That the defendant pay the plaintiff’s costs of and…