SUPREME COURT OF QUEENSLAND
CITATION:
Lien & Anor v Clontarf Residential Pty Ltd & Anor [2018] QSC 94
PARTIES:
WEI MING LIEN
(first plaintiff)
and
HSUEH ING LIEN(second plaintiff)
and
HSUEH ING LIEN AS TRUSTEE FOR THE HSUEH ING LIEN FAMILY TRUST
(third plaintiff)v
CLONTARF RESIDENTIAL PTY LTD
ACN 614 625 393(first defendant)
andDAVID IVANOVIC
(second defendant)FILE NO/S:
BS No 6244 of 2017
DIVISION:
Trial Division
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
4 May 2018
DELIVERED AT:
Brisbane
HEARING DATE:
30 October 2017, 31 October 2017 and 30 November 2017
JUDGE:
Jackson J
ORDER:
The order of the Court is that:
1. It is declared that the Profit Share and Project Management Agreement dated 23 September 2016 was terminated on 3 July 2017.
2. The first defendant cause to be cancelled and deregistered from the freehold land register the power of attorney registered as dealing no. 718022127.
3. The counterclaim be dismissed.
4. The parties be heard as to the form of the other orders to be made.
CATCHWORDS:
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where joint venture – where contract provided that except as expressly provided no remuneration may be paid to a contracting party – where contract provided for forecast of expenses to be incurred in carrying out development project – where management committee of joint venture must approve expenses outside of forecast – where item in forecast for “JV Establishment Fees”– whether those fees may be paid as remuneration rather than as reimbursement of expenses incurred by project manager in managing the development
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – OTHER CASES – where joint venture agreement – whether implied term to act in good faith towards each other and in performance of contract and exercise of powers thereunder – whether breach of implied term of good faith
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – WHAT AMOUNTS TO REPUDIATION – where alleged repudiation for multiple breaches – where alleged defendants demanded payment of joint venture funds for unauthorised disbursements – where alleged defendants refused to make adequate explanation of disbursements – where alleged defendants failed to disclose financial relationship with proposed recipient of disbursement – where alleged defendants sought payment of unauthorised referral fee to referring real estate agent – where alleged defendants refused to make joint venture records available – where alleged defendants purported to terminate appointment of plaintiffs appointee to joint venture management committee – where alleged defendants made unauthorised registration of power of attorney over joint venture land – where alleged defendants threatened to transfer land to related entity of defendants – whether intention to fulfil the contract only in a manner substantially inconsistent with the obligations and not in any other way – whether repudiation of contract –…
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- Case
- [2018] QSC 94
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the defendants breached the joint venture agreement by acting in bad faith, and if so, whether the plaintiff was justified in terminating the agreement. Specifically, the court had to determine whether the defendants’ actions constituted a repudiation of the contract, which would allow the plaintiff to terminate the agreement. Additionally, the court examined whether the defendants breached an implied term to act in good faith and whether the plaintiff's termination of the agreement was effective.
The court found that the defendants' actions, including their refusal to explain unauthorized disbursements, their failure to disclose a financial relationship with a proposed recipient of these funds, and their demand for an unauthorised referral fee, amounted to a repudiation of the contract. The court held that the defendants' conduct demonstrated an intention to perform the contract in a manner substantially inconsistent with their obligations, thereby justifying the plaintiff's termination of the agreement. The court further found that the implied term to act in good faith was breached, leading to the plaintiff's effective termination of the joint venture agreement.
The court declared that the Profit Share and Project Management Agreement was terminated on 3 July 2017, and ordered the first defendant to cancel and deregister a power of attorney related to the joint venture. The counterclaim was dismissed, and the parties were directed to discuss the form of other orders to be made.
Orders
Orders of the court
The order of the Court is that:
1. It is declared that the Profit Share and Project Management Agreement dated 23 September 2016 was terminated on 3 July 2017.
2. The first defendant cause to be cancelled and deregistered from the freehold land register the power of attorney registered as dealing no. 718022127.
3. The counterclaim be dismissed.
4. The parties be heard as to the form of the other orders to be made.
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.