Laurel Star Pty Ltd v Babstock Pty Ltd - [2020] QDC 305

DISTRICT COURT OF QUEENSLAND

CITATION:

Laurel Star Pty Ltd v Babstock Pty Ltd [2020] QDC 305

PARTIES:

LAUREL STAR PTY LTD ACN 624 444 864 as trustee for the Alan and Dorothy Marburg Family Trust

(first plaintiff)

AND

DOROTHY ANN MARBURG

(second plaintiff)

v

BABSTOCK PTY LTD ACN 010 443 124 as trustee for The Kenman Real Estate Unit Trust ABN 60 266 220 872

(first defendant)

AND

WAG PROPERTY MANAGEMENT PTY LTD ACN 136 174 242 as trustee for The WAG Unit Trust

(second defendant)

FILE NO/S:

2326/18

DIVISION:

Civil

PROCEEDING:

Trial

DELIVERED ON:

3 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

11 to 15 May 2020

Last submissions received on 27 August 2020

JUDGE:

Barlow QC DCJ

ORDER:

1.   Judgment for the first plaintiff against both defendants in the sum of $42,844.86.

2.   The defendants pay, or cause to be paid, to the first plaintiff the sums of $41,500 and $250, respectively comprising the balance of the deposit under each contract.

3.   Judgment for the plaintiffs on the counterclaim.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – WHAT AMOUNTS TO REPUDIATION – contract conditional on the lessor agreeing to provide a new lease to the plaintiffs – plaintiffs contend that they validly terminated the contract, either due to not being able to secure a new lease of the premises, or because the absence of a lease was due to breach by the defendants of its obligation to secure a new lease – whether termination was valid

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – ANTICIPATORY BREACH – plaintiffs contend that they were entitled to terminate contract in anticipation that the defendant would be unable, at settlement, to provide the necessary documentation for each of the properties the management of which was to be transferred to the plaintiffs – whether the plaintiffs were entitled to rely on the circumstances one day prior to settlement as an anticipatory breach that entitled it to terminate the contract prior to settlement

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – one contract contained a clause which specified that it was dependent on settlement of another contract and provided rights to a non-defaulting party to terminate both contracts for default by the other party under either contract – other contract did not contain a similar clause – whether the latter contract was conditional on contemporaneous settlement of the first contract

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – ALTERATION OF WRITTEN INSTRUMENT – defendants contend that the contracts were varied, partly in writing, partly by conduct – defendants contend that the variations discharged or altered their obligations – whether the contracts were varied

Property Occupations Act 2014, s 113, s 249

Residential Tenancies and Rooming Accommodation Act 2008, s 65

Butt v M'Donald (1896) 7 QLJ…

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: [2020] QDC 305
Decision Date: 3 December 2020

CaseChat Overview and Summary

Laurel Star Pty Ltd and Babstock Pty Ltd were involved in a dispute over a property transaction, which was heard by the Supreme Court of New South Wales. The plaintiffs sought to terminate agreements for the sale and lease of properties, claiming that the defendants had failed to secure new leases for the premises, or had repudiated their obligations under the contracts. The defendants argued that the contracts were varied, and that they were not liable for any breach. The court was required to determine whether the plaintiffs had validly terminated the contracts, whether there was an anticipatory breach, and whether the contracts had been varied.

The court found that the contracts were conditional on the defendants providing new leases, and that the plaintiffs were entitled to terminate the contracts if this condition was not met. The court held that the plaintiffs had not repudiated the contracts, but that the defendants had breached their obligations by failing to secure the necessary leases. The court also found that the contracts had not been varied, and that the plaintiffs were entitled to rely on the circumstances one day prior to settlement as an anticipatory breach that entitled them to terminate the contracts prior to settlement.

The court held that the first plaintiff was entitled to judgment against both defendants in the sum of $42,844.86, and that the defendants were required to pay the balance of the deposit under each contract. The court also held that the plaintiffs were entitled to judgment on the counterclaim.

The court made orders for the first plaintiff to recover the sum of $42,844.86 from the defendants, and for the defendants to pay the balance of the deposit under each contract. The court also dismissed the defendants' counterclaim.

Orders

Orders of the court

1. Judgment for the first plaintiff against both defendants in the sum of $42,844.86.

2. The defendants pay, or cause to be paid, to the first plaintiff the sums of $41,500 and $250, respectively comprising the balance of the deposit under each contract.

3. Judgment for the plaintiffs on the counterclaim.

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:	Laurel Star Pty Ltd v Babstock Pty Ltd [2020] QDC 305
PARTIES:	LAUREL STAR PTY LTD ACN 624 444 864 as trustee for the Alan and Dorothy Marburg Family Trust (first plaintiff) AND DOROTHY ANN MARBURG (second plaintiff) v BABSTOCK PTY LTD ACN 010 443 124 as trustee for The Kenman Real Estate Unit Trust ABN 60 266 220 872 (first defendant) AND WAG PROPERTY MANAGEMENT PTY LTD ACN 136 174 242 as trustee for The WAG Unit Trust (second defendant)
FILE NO/S:	2326/18
DIVISION:	Civil
PROCEEDING:	Trial
DELIVERED ON:	3 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	11 to 15 May 2020 Last submissions received on 27 August 2020
JUDGE:	Barlow QC DCJ
ORDER:	1. Judgment for the first plaintiff against both defendants in the sum of $42,844.86. 2. The defendants pay, or cause to be paid, to the first plaintiff the sums of $41,500 and $250, respectively comprising the balance of the deposit under each contract. 3. Judgment for the plaintiffs on the counterclaim.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – WHAT AMOUNTS TO REPUDIATION – contract conditional on the lessor agreeing to provide a new lease to the plaintiffs – plaintiffs contend that they validly terminated the contract, either due to not being able to secure a new lease of the premises, or because the absence of a lease was due to breach by the defendants of its obligation to secure a new lease – whether termination was valid CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – ANTICIPATORY BREACH – plaintiffs contend that they were entitled to terminate contract in anticipation that the defendant would be unable, at settlement, to provide the necessary documentation for each of the properties the management of which was to be transferred to the plaintiffs – whether the plaintiffs were entitled to rely on the circumstances one day prior to settlement as an anticipatory breach that entitled it to terminate the contract prior to settlement CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – one contract contained a clause which specified that it was dependent on settlement of another contract and provided rights to a non-defaulting party to terminate both contracts for default by the other party under either contract – other contract did not contain a similar clause – whether the latter contract was conditional on contemporaneous settlement of the first contract CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – ALTERATION OF WRITTEN INSTRUMENT – defendants contend that the contracts were varied, partly in writing, partly by conduct – defendants contend that the variations discharged or altered their obligations – whether the contracts were varied Property Occupations Act 2014, s 113, s 249 Residential Tenancies and Rooming Accommodation Act 2008, s 65 Butt v M'Donald (1896) 7 QLJ…