Le v Qureshi

[2003] QDC 442

DISTRICT COURT OF QUEENSLAND

CITATION:

Le & Anor v Qureshi &  Anor [2003] QDC 442

PARTIES:

NHAN CHI LE AND THI THANH XUAN TRAN
Plaintiffs

v

MOHAMMAD QURESHI AND SAADIA QURESHI
Defendants

FILE NO/S:

BD 3178 of 2003
and
BD 3643 of 2003

DIVISION:

Civil jurisdiction

PROCEEDING:

Application for summary judgment

ORIGINATING COURT:

Brisbane

DELIVERED ON:

9 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2003

JUDGE:

Judge Robin QC

ORDER:

Application granted, orders to be finalised

CATCHWORDS:

Summary judgment application by purchasers – vendors (seller) terminated under cl 91 of REIQ Queensland Law Society –Standard  Contract For Houses and Land (5^th ed) for purchasers breach of obligation under cl 5.2 to deliver transfer documents to the seller “a reasonable time before the Settlement Date – Vendors indicated correspondence should go to their solicitors’ post office box – settlement due Monday afternoon – transfer documents posted (and cleared) previous Thursday afternoon – although solicitors were in adjoining suburbs, transfer documents were not available in post office box until Monday morning – whether purchasers were in breach - assuming purchasers were in breach, court would relieve them from forfeiture of their bargain – obligation of contracting parties to co-operate considered – UCPR r 292

COUNSEL:

P Smith for plaintiffs
V Brennan for defendants

SOLICITORS:

TDT & Co Lawyers for plaintiffs
Lake Lawyers for defendants

1. This is the plaintiff-purchasers’ application for summary judgment for specific performance against the defendant-vendors.  The claim was filed as 3178 of 2003 on 24 September 2003.  For some reason which has not been made clear, when the “application” was brought in for filing it was re-entitled “originating application” and given a separate file number, with the consequence that the plaintiffs became obliged to pay additional fees of $428.60.  The Contract Date of the parties’ agreement, in the Law Society-REIQ Form (5^th ed.) is 7 July 2003, the Settlement Date “6 weeks from the date of contract”, which was 18 August 2003.  The contract price is $220,000 including a deposit of $11,000, for the subject property, land and residence constructed on it; material before the court indicates that the Valuer General’s valuation of the land, unimproved, relevant for purposes of the court’s jurisdiction is $74,000, well within the jurisdictional limit. 

1. In a rising market (of which there is evidence before the court), the defendants say they have terminated the agreement for failure of the plaintiffs to deliver transfer documents in time.  The Terms of Contract provide:

“6.1Time is of the essence of this contract, except regarding any agreement between the parties on a time of day for settlement.

5.  Settlement  provides, in part:

“5.1  Time and Date

(1)Settlement must occur between 9am and 5pm on the Settlement Date.

(2)If the parties do not agree on where settlement is to occur, it must take place in the Place for Settlement at the office of a solicitor or Financial Institution nominated by the Seller, or, if the Seller does not make a nomination, at the land registry…