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Juniper v Roberts

Juniper v Roberts

Case [2007] QSC 379 6 December 2007

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SUPREME COURT OF QUEENSLAND

CITATION:

Juniper v Roberts [2007] QSC 379

PARTIES:

SCOTT CHRISTIAN JUNIPER
(applicant)
v
JOHN HARRIS ROBERTS AND NGARIE JEAN ROBERTS
(respondent)

FILE NO/S:

8353/06

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

6 December 2007

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

19 July 2007

JUDGE:

Douglas J

ORDER:

1. DECLARE THAT THE RESPONDENTS FAILED TO COMPLY WITH SECTION 366(1) OF THE PROPERTY AGENTS AND MOTOR DEALERS ACT 2000 BY FAILING TO ATTACH A WARNING STATEMENT AS ITS FIRST OR TOP SHEET TO THE CONTRACT IN RELATION TO THE APPLICANT’S PURCHASE FROM THE RESPONDENTS OF LOT 16 ON CP AM83312, COUNTY OF CANNING, PARISH OF MOOLOOLAH, TITLE REFERENCE 14724012 (“THE CONTRACT”).

2. DECLARE THAT THE APPLICANT HAS LAWFULLY TERMINATED THE CONTRACT PURSUANT TO SECTION 367(2) OF THE PROPERTY AGENTS AND MOTOR DEALERS ACT 2000.

3. ORDER THAT THERE BE JUDGMENT IN FAVOUR OF THE APPLICANT AGAINST THE RESPONDENTS IN THE AMOUNT OF $242,413.64.

FURTHER SUBMISSIONS SOUGHT AS TO COSTS

CATCHWORDS:

CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER - BREACH OF CONTRACT – BREACH BY THE VENDOR: REMEDIES OF PURCHASER – GENERAL - where respondent in failing to attached a warning statement to a faxed sale contract breached s366(1) of the Property Agents and Motor Dealers Act 2000 – where the purchaser as a result has lawfully terminated the contract pursuant to s367(2) the Property Agents and Motor Dealers Act 2000.

CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER – MATTERS ARISING BETWEEN CONTRACT AND CONVEYANCE – WAIVER OF CONDITIONS - whether the applicant by proceeding with the contract waived his right to terminate the contract or elected not to exercise that right.

ESTOPPEL – ESTOPPEL IN PAIS – THE REPRESENTATION – BY CONDUCT – CONVEYANCING CASES - where alleged conduct by the purchaser in performing work on the property, leasing or advertising sale of the property does not prevent him from exercising his statutory right to terminate under s367(2) of the Property Agents And Motor Dealers Act 2000.

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – CROSS-CLAIMS: SET-OFF AND CONTERCLAIM – SET-OFF – WHAT MAY BE SET-OFF – DISTINCTION BETWEEN SET-OFF AND COUNTERCLAIM – where respondents had a claim for unliquidated damages against the purchaser for damage to the property – where such counterclaim is not one properly treated as a set off – where such claim may be part of a separate proceeding – where such claim does not prevent relief for the buyer under s 367(4) of the Property Agents and Motor Dealers Act 2000.

Property Agents and Motor Dealers Act 2000, s366(1), s366(3), s367(2)

Blackman v Milne [2006] QSC 350, distinguished
Eversure Textiles Manufacturing Co Ltd v Webb [1978] Qd R 347, cited
James v Commonwealth Bank of Australia (1992) 37 FCR 445, cited
Johnston v Jewry [2007] QCA 188, applied
McDonnell & East Ltd v McGregor (1936) 56 CLR 50, applied
MNM Developers Pty Ltd v Gerrard [2005] 1 Qd R 515, applied
MP Management (Aust) Pty…

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 Juniper v Roberts

Details

AGLC: Juniper v Roberts [2007] QSC 379
Case: [2007] QSC 379
Decision Date: 6 December 2007

CaseChat Overview and Summary

In the case of Juniper v Roberts, the plaintiff, Juniper, sought a declaration that the defendants, Roberts, had breached a statutory obligation under the Property Agents and Motor Dealers Act 2000, which led to the lawful termination of a property sale contract. The defendants were also alleged to have breached the contract by causing damage to the property, for which they sought unliquidated damages. The matter was heard in the Supreme Court of Western Australia. The plaintiff argued that the defendants had failed to attach a required warning statement to the contract, in breach of section 366(1) of the Act, which entitled the plaintiff to terminate the contract under section 367(2). The defendants contended that the plaintiff had waived his right to terminate the contract or elected not to exercise that right by proceeding with the contract. The defendants also argued that the plaintiff's conduct, including performing work on the property, leasing it, and advertising it for sale, prevented him from exercising his statutory right to terminate under section 367(2) of the Act.

The court considered whether the defendants' failure to attach the warning statement constituted a breach of section 366(1) of the Act and whether this breach entitled the plaintiff to lawfully terminate the contract under section 367(2). The court also considered whether the plaintiff had waived his right to terminate the contract or elected not to exercise that right. The court further examined whether the plaintiff's conduct prevented him from exercising his statutory right to terminate under section 367(2) of the Act. The court also considered the defendants' counterclaim for unliquidated damages for damage to the property and whether such a claim was properly treated as a set-off or counterclaim. The court held that the defendants had failed to attach the required warning statement, which constituted a breach of section 366(1) of the Act. The court held that the plaintiff was entitled to lawfully terminate the contract under section 367(2) of the Act. The court held that the plaintiff had not waived his right to terminate the contract or elected not to exercise that right. The court held that the plaintiff's conduct did not prevent him from exercising his statutory right to terminate under section 367(2) of the Act. The court held that the defendants' counterclaim for unliquidated damages was not properly treated as a set-off but could be part of a separate proceeding.

The court made several orders in favour of the plaintiff. Firstly, the court declared that the defendants had failed to comply with section 366(1) of the Act by failing to attach a warning statement as its first or top sheet to the contract. Secondly, the court declared that the plaintiff had lawfully terminated the contract pursuant to section 367(2) of the Act. Thirdly, the court ordered judgment in favour of the plaintiff against the defendants in the amount of $242,413.64. The court also sought further submissions as to costs.

Orders

Orders of the court

1. DECLARE THAT THE RESPONDENTS FAILED TO COMPLY WITH SECTION 366(1) OF THE PROPERTY AGENTS AND MOTOR DEALERS ACT 2000 BY FAILING TO ATTACH A WARNING STATEMENT AS ITS FIRST OR TOP SHEET TO THE CONTRACT IN RELATION TO THE APPLICANT’S PURCHASE FROM THE RESPONDENTS OF LOT 16 ON CP AM83312, COUNTY OF CANNING, PARISH OF MOOLOOLAH, TITLE REFERENCE 14724012 (“THE CONTRACT”).

2. DECLARE THAT THE APPLICANT HAS LAWFULLY TERMINATED THE CONTRACT PURSUANT TO SECTION 367(2) OF THE PROPERTY AGENTS AND MOTOR DEALERS ACT 2000.

3. ORDER THAT THERE BE JUDGMENT IN FAVOUR OF THE APPLICANT AGAINST THE RESPONDENTS IN THE AMOUNT OF $242,413.64.

FURTHER SUBMISSIONS SOUGHT AS TO COSTS

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

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Citations

AGLC Citation

Juniper v Roberts [2007] QSC 379

Most Recent Citation

Roberts v Juniper [2012] QDC 140

Cases citing this decision · 7 of 7 shown

Roberts v Juniper
[2012] QDC 140 Para 1

…sale of the property and that contract has previously been the subject of proceedings in the Supreme Court before Douglas J.[1] [1] Juniper v Roberts [2007] QSC 379.…
Crime and Misconduct Commission v FLP
[2011] QMC 8 Para 1

…; [2006] QSC 182; BC200605803; Johnston v Jewry [2008] 1 Qd R 360; (2007) Q ConvR 54-671; [2007] QCA 188; Juniper v Roberts [2007] QSC 379; BC200710867; Doolan v Rothmont Projects Pty Ltd [2010] QSC 193; BC201003759. The case was, however, distinguished in QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008]QC…
Gallagher v Boylan
[2011] QSC 94 Para 1

…In Juniper v Roberts [2007] QSC 379 the purchaser offered to purchase a residential property from the vendors on terms that did not require settlement for two years and entitled the purchaser to take possession on payment of the initial deposit and acceptance of title which the purchaser did within about two week…
Sunbay Projects Pty Ltd v PR Wieland Holdings Pty Ltd
[2010] QSC 368

…Ltd [2008] QSC 261 Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 112 ALR 609 Juniper v Roberts [2007] QSC 379 McDonald v Tinbilly Travellers P/L [2008] QCA 17 Mirvac Queensland Pty Ltd v Beioley [2010] QSC 113 MP Management (Aust) Pty Ltd v Churven [2002] QSC 320 Sargent v ASL D…
Marchesi v Viridian Noosa Pty Ltd
[2010] QSC 324 Para 1

…ivate benefit but doubted the possibility of a party waiving a statutory right which reflected a public policy for the benefit of the community. [8][2007] QSC 379, [12]-[13]; see also MP Management (Aust) Pty Ltd v Churven [2002] QSCX 320 at [45]-[47]. [9]See, e.g., Hedley Commercial Property Services Pty Ltd v B…
Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd
[2008] QSC 261 Para 6

…e issues which would arise in that context were discussed by Douglas J in Blackman v Milne [43] and Juniper v Roberts [44]. [43] [2006] QSC 350. [44] [2007] QSC 379. Was there a binding contract?…
Tudor Developments Pty Ltd v Makeig
[2008] NSWCA 263 Para 1

…lasian Concrete Services v Multiplex Constructions Pty Ltd [1999] NSWSC 1140; Blackman v Milne [2006] QSC 350; [2007] 1 Qd R 198; Juniper v Roberts [2007] QSC 379; Astill v South Esplanade Developments Pty Ltd [2007] SASC 231; (2007) ANZ ConvR 534; South Esplanade Developments Pty Ltd v Astill [2007] SADC 24; Kok…

View all 7 citing cases →

Cases cited in this decision · 7 of 7 shown

Johnston v Jewry
[2007] QCA 188

…[1978] Qd R 347, cited James v Commonwealth Bank of Australia (1992) 37 FCR 445, cited Johnston v Jewry [2007] QCA 188, applied McDonnell & East Ltd v McGregor (1936) 56 CLR 50, applied MNM Developers Pty Ltd v Gerrard [2005] 1 Qd R 515, applied MP Management (Aust) Pty Ltd v Churven [2002] QSC 320, cited Re K L…
South Esplanade Developments Pty Ltd v Astill
[2007] SADC 24 Para 1

…The respondents relied upon a decision of the South Australian District Court in South Esplanade Developments Pty Ltd v Astill [2007] SADC 24. In that case, his Honour, Judge Millsteed, considered whether the statutory cooling off right allowed to the buyer of land referred to in the legislation under considerati…
Blackman v Milne
[2006] QSC 350 Para 1

…r advertising it for sale amounted to a representation that he would not rely upon his statutory right to terminate. I recognised in Blackman v Milne [2006] QSC 350 that it was open to a buyer to waive a breach of this legislation by a seller on the basis that s. 365(2)(c)(ii) of this Act was a right created for…
M P Management (Aust) P/L v Churven
[2002] QSC 320 Para 1

…ith the contract. In this context Mr Doyle SC relied upon the following passage from the decision of Muir J in MP Management (Aust) Pty Ltd v Churven [2002] QSC 320 at [45]-[47]:…
James v Commonwealth Bank of Australia
[1992] FCA 617 Para 1

…See also Gummow J in James v Commonwealth Bank of Australia (1992) 37 FCR 445, 457-458 and Eversure Textiles Manufacturing Co Ltd v Webb [1978] Qd R 347, 348-349 per Connolly J and Re K L Tractors [1954] VLR 505, 507-508 per O’Bryan J.…
Yapeen Holdings Pty Ltd v Calardu Pty Ltd
[1992] FCA 420 Para 1

…See also Gummow J in James v Commonwealth Bank of Australia (1992) 37 FCR 445, 457-458 and Eversure Textiles Manufacturing Co Ltd v Webb [1978] Qd R 347, 348-349 per Connolly J and Re K L Tractors [1954] VLR 505, 507-508 per O’Bryan J.…
McDonnell and East Limited v McGregor
[1936] HCA 28 Para 1

…Such a counterclaim is not one properly treated as a set-off, as Dixon J said in McDonnell & East Ltd v McGregor (1936) 56 CLR 50, 62:…

Legislation cited in this decision · 1

Property Agents and Motor Dealers Act 2000 (Qld)
366(1) 2 mentions

CITATION:	Juniper v Roberts [2007] QSC 379
PARTIES:	SCOTT CHRISTIAN JUNIPER (applicant) v JOHN HARRIS ROBERTS AND NGARIE JEAN ROBERTS (respondent)
FILE NO/S:	8353/06
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	6 December 2007
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	19 July 2007
JUDGE:	Douglas J
ORDER:	1. DECLARE THAT THE RESPONDENTS FAILED TO COMPLY WITH SECTION 366(1) OF THE *PROPERTY AGENTS AND MOTOR DEALERS ACT* 2000 BY FAILING TO ATTACH A WARNING STATEMENT AS ITS FIRST OR TOP SHEET TO THE CONTRACT IN RELATION TO THE APPLICANT’S PURCHASE FROM THE RESPONDENTS OF LOT 16 ON CP AM83312, COUNTY OF CANNING, PARISH OF MOOLOOLAH, TITLE REFERENCE 14724012 (“THE CONTRACT”). 2. DECLARE THAT THE APPLICANT HAS LAWFULLY TERMINATED THE CONTRACT PURSUANT TO SECTION 367(2) OF THE *PROPERTY AGENTS AND MOTOR DEALERS ACT 2000.* 3. ORDER THAT THERE BE JUDGMENT IN FAVOUR OF THE APPLICANT AGAINST THE RESPONDENTS IN THE AMOUNT OF $242,413.64. FURTHER SUBMISSIONS SOUGHT AS TO COSTS
CATCHWORDS:	CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER - BREACH OF CONTRACT – BREACH BY THE VENDOR: REMEDIES OF PURCHASER – GENERAL - where respondent in failing to attached a warning statement to a faxed sale contract breached s366(1) of the Property Agents and Motor Dealers Act 2000 – where the purchaser as a result has lawfully terminated the contract pursuant to s367(2) the Property Agents and Motor Dealers Act 2000. CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER – MATTERS ARISING BETWEEN CONTRACT AND CONVEYANCE – WAIVER OF CONDITIONS - whether the applicant by proceeding with the contract waived his right to terminate the contract or elected not to exercise that right. ESTOPPEL – ESTOPPEL IN PAIS – THE REPRESENTATION – BY CONDUCT – CONVEYANCING CASES - where alleged conduct by the purchaser in performing work on the property, leasing or advertising sale of the property does not prevent him from exercising his statutory right to terminate under s367(2) of the Property Agents And Motor Dealers Act 2000. PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – CROSS-CLAIMS: SET-OFF AND CONTERCLAIM – SET-OFF – WHAT MAY BE SET-OFF – DISTINCTION BETWEEN SET-OFF AND COUNTERCLAIM – where respondents had a claim for unliquidated damages against the purchaser for damage to the property – where such counterclaim is not one properly treated as a set off – where such claim may be part of a separate proceeding – where such claim does not prevent relief for the buyer under s 367(4) of the Property Agents and Motor Dealers Act 2000. Property Agents and Motor Dealers Act 2000, s366(1), s366(3), s367(2) Blackman v Milne [2006] QSC 350, distinguished Eversure Textiles Manufacturing Co Ltd v Webb [1978] Qd R 347, cited James v Commonwealth Bank of Australia (1992) 37 FCR 445, cited Johnston v Jewry [2007] QCA 188, applied McDonnell & East Ltd v McGregor (1936) 56 CLR 50, applied MNM Developers Pty Ltd v Gerrard [2005] 1 Qd R 515, applied MP Management (Aust) Pty…