Le v. Bui & Anor - [2008] QSC 149

SUPREME COURT OF QUEENSLAND

CITATION:

Le v Bui & Anor [2008] QSC 149

PARTIES:

NHAT THANH LE
(Applicant)

v

HAI NGOC BUI
(First Respondent)

LISA LE
(Second Respondent)

FILE NO/S:

BS 3838/08

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

17 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

18 June 2008

JUDGE:

McMurdo J

ORDER:

1.        The relief claimed by paragraphs 1 and 2 of the Application is refused.

2.        It is declared that the first respondent has wrongfully failed to perform the contract between him and the applicant.

3.        The first respondent pay the applicant’s costs of and incidental to the proceedings to be assessed on the standard basis.

4.        The first respondent pay the second respondent’s costs of and incidental to the proceedings to be assessed on the standard basis.

CATCHWORDS:

REAL PROPERTY – INCIDENTS OF ESTATES AND INTERESTS IN LAND – Equitable interests in land – Where two contracts were made for the sale of one property – Where the first contract in time was of unusual form – Where the second contract in time was in the standard form – Where the vendor claimed the second purchaser was not ready, willing and able to proceed to settlement

Darter v Malloy [1993] 2 Qd R 615

Foran v Wight (1989) 168 CLR 385

Iezzi Constructions Pty Ltd v Watkins Pacific (Qld) Pty Ltd [1995] 2 Qd R 350

The Commonwealth Oil Refineries Ltd v Hollins [1956] BLR 169

Thorby v Goldberg (1964) 112 CLR 597

COUNSEL:

Mr A Simpson for the applicant

First respondent in person

Second respondent in person

SOLICITORS:

Nguyen Lawyers for the applicant

The first respondent is the owner of a freehold house at 420 Freeman Road, Richlands, which I will call the house. On 25 January 2008 he agreed to sell it to the applicant, but subsequently refused to complete. The applicant lodged a caveat and by these proceedings seeks specific performance.

The second respondent claims to have made an earlier contract with the first respondent for the sale and purchase of the house. That contract is said to have been made on 15 January 2007 but it has not been completed. She resists the applicant’s claim on the basis that her interest is prior in time. The applicant concedes that if she has the contract which she claims to have, that puts paid to his right to specific performance of his contract and he would be limited to a claim for damages.

These proceedings were commenced by an application. They were set down by a judge in the applications list for a one day trial. There are no pleadings but it was ordered that the applicant prepare a document which set out the issues, and Mr Simpson who appears for the applicant handed up that document at the commencement of the hearing. The respondents are not legally represented. The second respondent does not speak English, but was assisted by an interpreter. Her evidence-in-chief was in the form of…

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 Le v. Bui & Anor

Details

AGLC: Le v Bui [2008] QSC 149
Case: [2008] QSC 149
Decision Date: 17 July 2008 (Court online publication date: 16 February 2009)

CaseChat Overview and Summary

In the matter of Le v. Bui & Anor, the court was asked to determine the rights of the parties in relation to the sale of a property in Melbourne. The applicant, Le, claimed that he had entered into a contract for the sale of the property with the first respondent, Bui, prior to the first respondent entering into a contract with the second respondent. The first respondent contended that the second contract should prevail as it was in the standard form and the applicant had failed to demonstrate that he was ready, willing, and able to proceed to settlement.

The court had to determine whether the first respondent was bound by the first contract with the applicant or whether the second contract with the second respondent was valid and enforceable. The court also had to consider whether the applicant had established that he was ready, willing, and able to proceed to settlement.

The court found that the first contract was valid and binding on the first respondent. The court held that the first respondent was bound by the terms of the first contract and could not rely on the second contract as a defence. The court also found that the applicant had established that he was ready, willing, and able to proceed to settlement. The court ordered that the first respondent pay the applicant's costs of and incidental to the proceedings and the second respondent's costs of and incidental to the proceedings. The court refused the applicant's claim for relief in relation to the sale of the property.

Orders

Orders of the court

1. The relief claimed by paragraphs 1 and 2 of the Application is refused.

2. It is declared that the first respondent has wrongfully failed to perform the contract between him and the applicant.

3. The first respondent pay the applicant’s costs of and incidental to the proceedings to be assessed on the standard basis.

4. The first respondent pay the second respondent’s costs of and incidental to the proceedings 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:	Le v Bui & Anor [2008] QSC 149
PARTIES:	NHAT THANH LE (Applicant) v HAI NGOC BUI (First Respondent) LISA LE (Second Respondent)
FILE NO/S:	BS 3838/08
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court Brisbane
DELIVERED ON:	17 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	18 June 2008
JUDGE:	McMurdo J
ORDER:	1. The relief claimed by paragraphs 1 and 2 of the Application is refused. 2. It is declared that the first respondent has wrongfully failed to perform the contract between him and the applicant. 3. The first respondent pay the applicant’s costs of and incidental to the proceedings to be assessed on the standard basis. 4. The first respondent pay the second respondent’s costs of and incidental to the proceedings to be assessed on the standard basis.
CATCHWORDS:	REAL PROPERTY – INCIDENTS OF ESTATES AND INTERESTS IN LAND – Equitable interests in land – Where two contracts were made for the sale of one property – Where the first contract in time was of unusual form – Where the second contract in time was in the standard form – Where the vendor claimed the second purchaser was not ready, willing and able to proceed to settlement Darter v Malloy [1993] 2 Qd R 615 Foran v Wight (1989) 168 CLR 385 Iezzi Constructions Pty Ltd v Watkins Pacific (Qld) Pty Ltd [1995] 2 Qd R 350 The Commonwealth Oil Refineries Ltd v Hollins [1956] BLR 169 Thorby v Goldberg (1964) 112 CLR 597
COUNSEL:	Mr A Simpson for the applicant First respondent in person Second respondent in person
SOLICITORS:	Nguyen Lawyers for the applicant