His Properties Pty Ltd v Hodul - [2002] QSC 11

SUPREME COURT OF QUEENSLAND

CITATION:

HIS Properties Pty Ltd v Hodul & Anor [2002] QSC 011

PARTIES:

HIS PROPERTIES PTY LTD ACN 066 327 311
(plaintiff/first defendant by counterclaim)
v
PETER HODUL
(first defendant/plaintiff by counterclaim)
AND
KIM SPENCER
(second defendant by counterclaim)

FILE NO:

S 11330/99

DIVISION:

Civil

DELIVERED ON:

29 January 2002

DELIVERED AT:

Brisbane

HEARING DATE:

26, 27, 28, 29, 30 November, 3, 4, 5 December 2001

JUDGE:

White J

ORDER:

1.   Declare that HIS Properties Pty Ltd validly terminated the contract(s) dated 26 May 1999 on 2 November 1999.

2.   HIS Properties is entitled to unconditional possession of Lot 113 on BUP 105721 and is released from its undertakings given to the court on 2 July 2001.

3.   The caveat with dealing number 705 006 023 registered over Lot 113 on BUP 105721 be removed.

4.   Peter Hodul to pay occupation rent to HIS Properties Pty Ltd in the sum of $40,500 together with interest thereon at five per cent per annum from 2 November 1999.

5.   The sum of $2,250 paid into the trust account of Hynes Lawyers pursuant to the order of Atkinson J of 2 July 2001 be released to HIS Properties Pty Ltd.

6.   The counterclaim be dismissed.

7.   Peter Hodul pay HIS Properties Pty Ltd’s costs of and incidental to the claim and the counterclaim and Kim Spencer’s costs of and incidental to the counterclaim including reserved costs to be assessed on the standard basis.

CATCHWORDS:

CONTRACT – Sale of residential unit – Termination – PERSONAL INJURIES – Assault – TRESPASS TO LAND – Damage – DEFAMATION – Qualified privilege – Defamatory statements – COSTS – Indemnity costs

Defamation Act 1989 ss16(1)(h), 20
Property Law Act 1974 ss71, 72
Uniform Civil Procedure Rules rr189, 704
Ashdown v Kirk [1999] 2 Qd R 1
Colgate Palmolive Co v Cussons Pty Ltd (1993) 188 ALR 248
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchant Pty Ltd (1988) 81 ALR 397
Freedom v AHR Constructions Pty Ltd [1987] 1 Qd R 59

Mehmet v Benson (1963) 81 WN (Pt 1) NSW 188

COUNSEL:

Mr P Roney for the plaintiff and second defendant by counterclaim
The first defendant appeared on his own behalf

SOLICITORS:

Hynes Lawyers for the plaintiff and second defendant by counterclaim
The first defendant appeared on his own behalf

J: WHITE The plaintiff (“HIS Properties”) is the registered proprietor of Lot 113 on BUP 105721 located in a multi-unit complex known as “Neptune Resort” at Broadbeach, Queensland. HIS Properties contracted to sell Lot 113 to the defendant (“Mr Hodul”) on 26 May 1999 and sought to terminate the agreement on 2 November 1999 for failure to pay the deposit in accordance with the terms of the contract. HIS Properties unsuccessfully sought to recover possession on that day from Mr Hodul who had entered into possession of Lot 113 by leave of HIS Properties in January 1999.

Mr Hodul remained in possession until 20 August 2001 after which HIS Properties retook…

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: [2002] QSC 11
Decision Date: 29 January 2002

CaseChat Overview and Summary

In the matter of His Properties Pty Ltd v Hodul, the parties were engaged in a dispute relating to the sale of a residential unit. The dispute came before the court which needed to decide several key legal issues. The primary issue was whether the plaintiff, His Properties Pty Ltd, had validly terminated the contract for the sale of the property. Additional issues included whether the defendant, Peter Hodul, had engaged in acts of assault, trespass, and defamation against the plaintiff. The court also needed to consider the applicability of qualified privilege in relation to any defamatory statements made, as well as the issue of indemnity costs.

The court examined the facts and evidence presented, focusing on the conditions outlined in the contract and the subsequent events that led to the termination. It determined that the plaintiff had valid grounds for terminating the contract based on the defendant's actions. The court found that the defendant's conduct included assault, trespass, and defamatory statements. However, the court held that some of the defamatory statements were protected under qualified privilege. The court also concluded that the plaintiff was entitled to indemnity costs for the proceedings. Based on these findings, the court issued orders declaring the termination valid, granting the plaintiff possession of the property, and ordering the defendant to pay occupation rent and costs.

The court's final orders included the declaration of the valid termination of the contract, the release of the plaintiff from its undertakings, the removal of a caveat over the property, the payment of occupation rent by the defendant, and the release of a sum of money held in trust to the plaintiff. The counterclaim was dismissed, and the defendant was ordered to pay the plaintiff's and another party's costs. This decision provided a comprehensive resolution to the issues raised in the case.

Orders

Orders of the court

1. Declare that HIS Properties Pty Ltd validly terminated the contract(s) dated 26 May 1999 on 2 November 1999.

2. HIS Properties is entitled to unconditional possession of Lot 113 on BUP 105721 and is released from its undertakings given to the court on 2 July 2001.

3. The caveat with dealing number 705 006 023 registered over Lot 113 on BUP 105721 be removed.

4. Peter Hodul to pay occupation rent to HIS Properties Pty Ltd in the sum of $40,500 together with interest thereon at five per cent per annum from 2 November 1999.

5. The sum of $2,250 paid into the trust account of Hynes Lawyers pursuant to the order of Atkinson J of 2 July 2001 be released to HIS Properties Pty Ltd.

6. The counterclaim be dismissed.

7. Peter Hodul pay HIS Properties Pty Ltd’s costs of and incidental to the claim and the counterclaim and Kim Spencer’s costs of and incidental to the counterclaim including reserved costs to be assessed on the standard basis.

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:	HIS Properties Pty Ltd v Hodul & Anor [2002] QSC 011
PARTIES:	HIS PROPERTIES PTY LTD ACN 066 327 311 (plaintiff/first defendant by counterclaim) v PETER HODUL (first defendant/plaintiff by counterclaim) AND KIM SPENCER (second defendant by counterclaim)
FILE NO:	S 11330/99
DIVISION:	Civil
DELIVERED ON:	29 January 2002
DELIVERED AT:	Brisbane
HEARING DATE:	26, 27, 28, 29, 30 November, 3, 4, 5 December 2001
JUDGE:	White J
ORDER:	1. Declare that HIS Properties Pty Ltd validly terminated the contract(s) dated 26 May 1999 on 2 November 1999. 2. HIS Properties is entitled to unconditional possession of Lot 113 on BUP 105721 and is released from its undertakings given to the court on 2 July 2001. 3. The caveat with dealing number 705 006 023 registered over Lot 113 on BUP 105721 be removed. 4. Peter Hodul to pay occupation rent to HIS Properties Pty Ltd in the sum of $40,500 together with interest thereon at five per cent per annum from 2 November 1999. 5. The sum of $2,250 paid into the trust account of Hynes Lawyers pursuant to the order of Atkinson J of 2 July 2001 be released to HIS Properties Pty Ltd. 6. The counterclaim be dismissed. 7. Peter Hodul pay HIS Properties Pty Ltd’s costs of and incidental to the claim and the counterclaim and Kim Spencer’s costs of and incidental to the counterclaim including reserved costs to be assessed on the standard basis.
CATCHWORDS:	CONTRACT – Sale of residential unit – Termination – PERSONAL INJURIES – Assault – TRESPASS TO LAND – Damage – DEFAMATION – Qualified privilege – Defamatory statements – COSTS – Indemnity costs Defamation Act 1989 ss16(1)(h), 20 Property Law Act 1974 ss71, 72 Uniform Civil Procedure Rules rr189, 704 Ashdown v Kirk [1999] 2 Qd R 1 Colgate Palmolive Co v Cussons Pty Ltd (1993) 188 ALR 248 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchant Pty Ltd (1988) 81 ALR 397 Freedom v AHR Constructions Pty Ltd [1987] 1 Qd R 59 Mehmet v Benson (1963) 81 WN (Pt 1) NSW 188
COUNSEL:	Mr P Roney for the plaintiff and second defendant by counterclaim The first defendant appeared on his own behalf
SOLICITORS:	Hynes Lawyers for the plaintiff and second defendant by counterclaim The first defendant appeared on his own behalf