Long v Hijazi - [2017] QDC 187

DISTRICT COURT OF QUEENSLAND

CITATION:

Long & Anor v Hijazi [2017] QDC 187

PARTIES:

JOSHUA STEVEN LONG

and

VANESSA MAREE WILSON

(plaintiffs)

v

MILIZE HIJAZI

(defendant)

FILE NO/S:

4934 of 2016

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

7 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

12 June 2017

JUDGE:

Dick SC DCJ

ORDER:

1.   That the contract of sale dated 19 October 2016 (the contract) for the sale of real property at 1 Hilarie Avenue, Springwood in the State of Queensland (the property) between the Defendant as Seller and the Plaintiffs as buyers ought to be specifically performed and carried into execution.

2.   That subject to the other order of the court, settlement of the contract be effected on 21 July 2017.

3.   That the parties agree on settlement figures to enable that settlement to be effected.

4.   That the settlement be effected on 21 July 2017 at a time and place suitable to the first mortgagee of the property.

5.   That there be judgment for the Plaintiffs against the Defendant in the sum of $4620.00 for claim and $90.50 for interest.

6.   The parties be at liberty, upon giving reasonable notice to the other, to list the matter for ancillary orders to enable settlement to be effected.

7.   The Defendant pay the Plaintiffs costs of and incidental to the Claim on standard costs.

CATCHWORDS:

CONTRACT LAW – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – whether there is a breach of contract – where there is a payment of deposit – where contract is terminated – where there is rescission of termination – whether a claim for specific performance and damages should be granted

Brien v Dwyer (1978) 141 CLR 378

Decro-Wall International SA v Practitioners in Marketing Ltd [1971] 1 WLR 361

Express Airways v Port Augusta Air Services [1980] Qd R 543

Foran v Wight (1989) 168 CLR 385

Hill v Sidney [1991] 2 Qd R 547

Mendelson-Zeller Co Inc v T & C Providores Pty Ltd [1981] 1 NSWLR 366

R v Preddy [1996] 3 All ER 481

Tropical Traders v Goonan (1964) 111 CLR 41

COUNSEL:

B Whitten for the plaintiffs

A Christie for the defendant

SOLICITORS:

McCarthy Durie Lawyers for the plaintiffs

Bartels Lawyers for the defendant

This is an action for a claim for specific performance and damages related to a failed sale for real estate situated at 1 Hilarie Avenue, Springwood. The parties agreed that the matter be heard on the affidavit materials before the court.
The contract provided that the timing of the payment of the deposit, expressed in the reference schedule of the contract, be “on the day the buyer signs this contract unless another time is specified below”. The words below were “acceptance of contract”.
The parties contemplated the availability of the use of electronic bank transfer for the payment of the deposit because the contract provided that the deposit holder was Pestana Realty Pty Ltd trading as Red Rocket Realty. The…

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 Long v Hijazi

Details

AGLC: Long v Hijazi [2017] QDC 187
Case: [2017] QDC 187
Decision Date: 7 July 2017

CaseChat Overview and Summary

The case of Long v Hijazi involved the plaintiffs, Long and his wife, who sought specific performance and damages against the defendant, Hijazi, in relation to a contract for the sale of property. The dispute arose after the parties had entered into a contract for the sale of a property in Springwood, Queensland, and the defendant later sought to terminate the contract and rescind it. The plaintiffs sought specific performance and damages from the defendant for breach of contract. The matter was heard in the District Court of Queensland.

The central legal issues that the court needed to determine were whether the contract was properly rescinded by the defendant and, if not, whether the plaintiffs were entitled to specific performance and damages. The court had to examine the circumstances surrounding the termination of the contract, the validity of the rescission, and the appropriateness of the remedies sought by the plaintiffs.

The court found that the defendant had not acted in accordance with the terms of the contract when terminating it, and the rescission was therefore invalid. As a result, the contract remained in effect, and the plaintiffs were entitled to specific performance. The court ordered that the contract be specifically performed and carried into execution, with settlement to be effected on 21 July 2017. The plaintiffs were also awarded damages in the sum of $4620.00, plus interest of $90.50. Additionally, the court ordered the defendant to pay the plaintiffs' costs of and incidental to the claim on standard costs.

The court's final orders included specific performance and settlement of the contract, along with a determination of the settlement figures, time, and place for settlement. The parties were also granted liberty to list the matter for ancillary orders to facilitate settlement. The defendant was ordered to pay the plaintiffs' costs of and incidental to the claim on standard costs.

Orders

Orders of the court

1. That the contract of sale dated 19 October 2016 (the contract) for the sale of real property at 1 Hilarie Avenue, Springwood in the State of Queensland (the property) between the Defendant as Seller and the Plaintiffs as buyers ought to be specifically performed and carried into execution.

2. That subject to the other order of the court, settlement of the contract be effected on 21 July 2017.

3. That the parties agree on settlement figures to enable that settlement to be effected.

4. That the settlement be effected on 21 July 2017 at a time and place suitable to the first mortgagee of the property.

5. That there be judgment for the Plaintiffs against the Defendant in the sum of $4620.00 for claim and $90.50 for interest.

6. The parties be at liberty, upon giving reasonable notice to the other, to list the matter for ancillary orders to enable settlement to be effected.

7. The Defendant pay the Plaintiffs costs of and incidental to the Claim on standard costs.

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:	Long & Anor v Hijazi [2017] QDC 187
PARTIES:	JOSHUA STEVEN LONG and VANESSA MAREE WILSON (plaintiffs) v MILIZE HIJAZI (defendant)
FILE NO/S:	4934 of 2016
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	7 July 2017
DELIVERED AT:	Brisbane
HEARING DATE:	12 June 2017
JUDGE:	Dick SC DCJ
ORDER:	1. That the contract of sale dated 19 October 2016 (the contract) for the sale of real property at 1 Hilarie Avenue, Springwood in the State of Queensland (the property) between the Defendant as Seller and the Plaintiffs as buyers ought to be specifically performed and carried into execution. 2. That subject to the other order of the court, settlement of the contract be effected on 21 July 2017. 3. That the parties agree on settlement figures to enable that settlement to be effected. 4. That the settlement be effected on 21 July 2017 at a time and place suitable to the first mortgagee of the property. 5. That there be judgment for the Plaintiffs against the Defendant in the sum of $4620.00 for claim and $90.50 for interest. 6. The parties be at liberty, upon giving reasonable notice to the other, to list the matter for ancillary orders to enable settlement to be effected. 7. The Defendant pay the Plaintiffs costs of and incidental to the Claim on standard costs.
CATCHWORDS:	CONTRACT LAW – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – whether there is a breach of contract – where there is a payment of deposit – where contract is terminated – where there is rescission of termination – whether a claim for specific performance and damages should be granted Brien v Dwyer (1978) 141 CLR 378 Decro-Wall International SA v Practitioners in Marketing Ltd [1971] 1 WLR 361 Express Airways v Port Augusta Air Services [1980] Qd R 543 Foran v Wight (1989) 168 CLR 385 Hill v Sidney [1991] 2 Qd R 547 Mendelson-Zeller Co Inc v T & C Providores Pty Ltd [1981] 1 NSWLR 366 R v Preddy [1996] 3 All ER 481 Tropical Traders v Goonan (1964) 111 CLR 41
COUNSEL:	B Whitten for the plaintiffs A Christie for the defendant
SOLICITORS:	McCarthy Durie Lawyers for the plaintiffs Bartels Lawyers for the defendant