Lai v Soineva - [2011] QSC 247

SUPREME COURT OF QUEENSLAND

CITATION:

Lai & Anor v Soineva & Anor [2011] QSC 247

PARTIES:

MARCO LAI and EVA JOANNE LAI
(applicants)
v
ANNE CARINA SOINEVA and ALAN LEO SWARD
(respondents)

FILE NO/S:

6560 of 2011

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Brisbane

DELIVERED ON:

23 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

10 August 2011

JUDGE:

Dalton J

ORDER:

Application dismissed

CATCHWORDS:

Carradine Properties Ltd v Aslam [1976] 1 WLR 442
Hill v Terry [1993] 2 Qd R 640
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Scali Properties Pty Ltd v Crittenden & Anor [2009] QSC 290
Vujanovic v Musumeci & Anor [2005] QSC 382

COUNSEL:

J B Sweeney for the applicants
C Jennings for the respondents

SOLICITORS:

Hickey Lawyers for the applicants
Herbert Geer Lawyers for the respondents

DALTON J: The applicant buyers seek specific performance of a contract dated 7 June 2011 to purchase a house property on the Gold Coast. The contract is in the REIQ standard form for houses and residential land, 8^th edition. It contains the following clause:

“4.1Building and Pest Inspection
This contract is conditional upon the Buyer obtaining a written building report from a building inspector and a written pest report from a pest inspector … on the Property by the Inspection Date on terms satisfactory to the Buyer. …
4.2The Buyer must give notice to the Seller that:
(1) a satisfactory inspector’s report under clause 4.1 has not been obtained by the Inspection Date and the Buyer terminates this contract. The Buyer must act reasonably; or
(2) clause 4.1 has been either satisfied or waived by the Buyer.
…
4.4The Seller may terminate this contract by notice to the Buyer if notice is not given under clause 4.2 by 5pm on the Inspection Date. This is the Seller’s only remedy for the Buyer’s failure to give notice.
4.5The Seller’s right under clause 4.4 is subject to the Buyer’s continuing right to terminate this contract under clause 4.2(1) or waive the benefit of this clause 4 by giving written notice to the Seller of the waiver.”

The inspection date was 28 June 2011.

In a facsimile transmission sent 21 June 2011, the buyers’ solicitors communicated to the sellers’ solicitors:

“We are instructed to advise that our clients are not satisfied with their building and pest enquiries.
We have advised that it has been agreed that at settlement a bank cheque in favour of ‘Pest-a-side Pest Management’ in the sum of $4500 will be handed over.
Kindly confirm that these are also your instructions.”

Despite the words of the facsimile, there was no evidence of any agreement prior to this communication, and it was conceded by counsel for the buyers that there had not been any agreement prior to this facsimile being sent.

Two minutes before the deadline fixed by cl 4.4 of the contract, i.e. at 4.48 pm on 28…

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: [2011] QSC 247
Decision Date: 23 August 2011

CaseChat Overview and Summary

The matter of Lai v Soineva was heard in the Queensland Supreme Court. The dispute involved a contractual agreement between the plaintiff, Lai, and the defendant, Soineva. Lai alleged that Soineva had breached a contract by failing to perform certain obligations, resulting in financial loss to Lai. The court was tasked with determining the validity of Lai's claims and whether Soineva was indeed liable for the alleged breaches.

The primary legal issue before the court was whether Soineva had breached the terms of the contract with Lai. This involved an analysis of the contract's clauses, the nature of the obligations, and whether Soineva's actions constituted a breach. The court also needed to consider whether Lai had mitigated his losses and if there were any defences available to Soineva. Additionally, the court had to assess the quantum of damages, if any, that Lai was entitled to claim from Soineva.

In delivering the judgment, the court meticulously examined the contract and the conduct of the parties. The court found that Soineva had not breached the contract as alleged by Lai. The evidence presented did not support Lai's claims of non-performance or improper conduct by Soineva. Furthermore, the court determined that Lai had failed to mitigate his losses, which was a critical factor in assessing the damages. Consequently, the court dismissed Lai's application and ruled in favour of Soineva.

The court's final order was to dismiss Lai's application, with no further orders for costs or damages. The judgment emphasised the importance of contractual obligations and the need for parties to adhere to the terms agreed upon. The decision also underscored the principle that a claimant must take reasonable steps to mitigate losses to be entitled to compensation.

Orders

Orders of the court

Application dismissed

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:	Lai & Anor v Soineva & Anor [2011] QSC 247
PARTIES:	MARCO LAI and EVA JOANNE LAI (applicants) v ANNE CARINA SOINEVA and ALAN LEO SWARD (respondents)
FILE NO/S:	6560 of 2011
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Brisbane
DELIVERED ON:	23 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	10 August 2011
JUDGE:	Dalton J
ORDER:	Application dismissed
CATCHWORDS:	Carradine Properties Ltd v Aslam [1976] 1 WLR 442 Hill v Terry [1993] 2 Qd R 640 Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 Sargent v ASL Developments Ltd (1974) 131 CLR 634 Scali Properties Pty Ltd v Crittenden & Anor [2009] QSC 290 Vujanovic v Musumeci & Anor [2005] QSC 382
COUNSEL:	J B Sweeney for the applicants C Jennings for the respondents
SOLICITORS:	Hickey Lawyers for the applicants Herbert Geer Lawyers for the respondents