Majet v Goggin and Miller - [2015] QSC 38

SUPREME COURT OF QUEENSLAND

CITATION:

Majet & Anor v Goggin & Miller as Trustees of the Bankrupt Estate of Brett-Hall & Anor [2015] QSC 38

PARTIES:

CHRISTINE MAJET AND JOEL MAJET
(applicants)
v
JOHN JOSEPH GOGGIN AND GLENN LESLIE MILLER OF BRI FERRIER AS JOINT AND SEVERAL TRUSTEES OF THE BANKRUPT ESTATE OF HERBERT RATCLIFFE BRETT-HALL
(first respondents)
AND
ROBERT POWELL PALETHORPE TRADING AS ROBERT P PALETHORPE

(second respondent)

FILE NO/S:

SC No 442 of 2014

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

27 February 2015

DELIVERED AT:

Cairns

HEARING DATE:

10 December 2014

JUDGE:

Henry J

ORDERS:

The application of the first respondents is dismissed.1.

It is declared the applicants are entitled to the deposit (“the deposit”) paid by Herbert Ratcliffe Brett-Hall under a contract dated 15 January 2014 for the sale and purchase of a property described as Lot 90 on Registered Plan 746256 in the County of Solander Parish of Salisbury (Title Reference number 21351084) and situated at 105 St Crispins Avenue, Port Douglas in the State of Queensland.2.

The deposit is to be paid to the applicants’ solicitors.3.

I will hear the parties as to costs, if costs are not agreed, on the giving of two days notice in writing by either party.4.

CATCHWORDS:

CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – ENTITLEMENT TO DEPOSIT – where the trustees for the bankrupt buyer disclaimed a real estate contract – whether the sellers are entitled to the deposit

BANKRUPTCY – PROCEEDINGS IN CONNECTION WITH SEQUESTRATION – DISCLAIMER – where the trustees for a bankrupt buyer disclaimed a real estate contract – whether in consequence of the disclaimer the buyer was in default – whether the proviso to s 133(2) Bankruptcy Act 1966 (Cth) applies – whether the sellers are entitled to the deposit

Abraham v Johns (No 2) [2010] VSC 212, considered
Anscor Pty Ltd v Clout (2004) 135 FCR 469, cited
Brady v Stapleton (1952) 88 CLR 322, cited
Ex parte Barrell; In re Parnell (1875) LR 10, applied
Foran v Wight (1989) 168 CLR 385, cited
Howe v Smith (1884) 27 Ch D 89, considered
Re Burman [1993] 1 Qd R 49, applied
Willmot Growers Group Inc v Willmot Florists Ltd (Recs and Mgrs. apptd) (in liq) & Ors (2013) 251 CLR 592, distinguished

Bankruptcy Act 1966 (Cth) s 5, s 115(1), s 121, s 122, s 123, s 133(1A), s 133(2)

COUNSEL:

Dr M Jonsson for the Applicants
CJ Ryall for the First Respondents

No appearance for the Second Respondent

SOLICITORS:

Williams Graham Carman Solicitors for the Applicants
Devenish Law for the First Respondent

No appearance for the Second Respondent

These cross-applications concern the fate of a deposit paid under a real estate contract that did not complete.

The applicants, the sellers, seek an order that the deposit be paid to their solicitor accompanied by an order for forfeiture of the deposit or alternatively a declaration that the applicants are entitled to…

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: [2015] QSC 38
Decision Date: 27 February 2015

CaseChat Overview and Summary

The case of Majet v Goggin and Miller involved a dispute over the entitlement to a deposit paid under a real estate contract. The applicant, Majet, sought the return of the deposit paid by Herbert Ratcliffe Brett-Hall, a buyer who subsequently became bankrupt. The sellers, Goggin and Miller, argued that they were entitled to retain the deposit as a result of the buyer’s bankruptcy and the subsequent disclaimer of the contract by the buyer's trustees. The matter was heard in the Supreme Court of Queensland.

The central legal issues in the case revolved around the application of the proviso to s 133(2) of the Bankruptcy Act 1966 (Cth) and the consequences of a disclaimer of a real estate contract by the trustees for a bankrupt buyer. The court had to determine whether the disclaimer resulted in the buyer being in default of the contract and, if so, whether the proviso to s 133(2) applied to allow the sellers to retain the deposit. Additionally, the court needed to examine the implications of the disclaimer on the parties’ entitlements under the contract.

The court found that the trustees for the bankrupt buyer had the right to disclaim the real estate contract, which resulted in the buyer being in default. However, the court held that the proviso to s 133(2) did not apply in this case. The court reasoned that the proviso only allows the sellers to retain the deposit if the buyer is in default and the sellers have not repudiated the contract. Since the disclaimer by the trustees was not considered a repudiation by the buyer, the proviso did not apply, and the sellers were not entitled to retain the deposit. Consequently, the applicants were declared entitled to the return of the deposit.

The court dismissed the application of the first respondents and declared that the applicants were entitled to the deposit paid by Herbert Ratcliffe Brett-Hall. The deposit was to be paid to the applicants’ solicitors, and the parties were given an opportunity to agree on costs or to notify the court if they wished to proceed with a costs hearing.

Orders

Orders of the court

The application of the first respondents is dismissed.1.

It is declared the applicants are entitled to the deposit (“the deposit”) paid by Herbert Ratcliffe Brett-Hall under a contract dated 15 January 2014 for the sale and purchase of a property described as Lot 90 on Registered Plan 746256 in the County of Solander Parish of Salisbury (Title Reference number 21351084) and situated at 105 St Crispins Avenue, Port Douglas in the State of Queensland.2.

The deposit is to be paid to the applicants’ solicitors.3.

I will hear the parties as to costs, if costs are not agreed, on the giving of two days notice in writing by either party.4.

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:	Majet & Anor v Goggin & Miller as Trustees of the Bankrupt Estate of Brett-Hall & Anor [2015] QSC 38
PARTIES:	CHRISTINE MAJET AND JOEL MAJET (applicants) v JOHN JOSEPH GOGGIN AND GLENN LESLIE MILLER OF BRI FERRIER AS JOINT AND SEVERAL TRUSTEES OF THE BANKRUPT ESTATE OF HERBERT RATCLIFFE BRETT-HALL (first respondents) AND ROBERT POWELL PALETHORPE TRADING AS ROBERT P PALETHORPE (second respondent)
FILE NO/S:	SC No 442 of 2014
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	27 February 2015
DELIVERED AT:	Cairns
HEARING DATE:	10 December 2014
JUDGE:	Henry J
ORDERS:	The application of the first respondents is dismissed.1. It is declared the applicants are entitled to the deposit (“the deposit”) paid by Herbert Ratcliffe Brett-Hall under a contract dated 15 January 2014 for the sale and purchase of a property described as Lot 90 on Registered Plan 746256 in the County of Solander Parish of Salisbury (Title Reference number 21351084) and situated at 105 St Crispins Avenue, Port Douglas in the State of Queensland.2. The deposit is to be paid to the applicants’ solicitors.3. I will hear the parties as to costs, if costs are not agreed, on the giving of two days notice in writing by either party.4.
CATCHWORDS:	CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – ENTITLEMENT TO DEPOSIT – where the trustees for the bankrupt buyer disclaimed a real estate contract – whether the sellers are entitled to the deposit BANKRUPTCY – PROCEEDINGS IN CONNECTION WITH SEQUESTRATION – DISCLAIMER – where the trustees for a bankrupt buyer disclaimed a real estate contract – whether in consequence of the disclaimer the buyer was in default – whether the proviso to s 133(2) Bankruptcy Act 1966 (Cth) applies – whether the sellers are entitled to the deposit Abraham v Johns (No 2) [2010] VSC 212, considered Anscor Pty Ltd v Clout (2004) 135 FCR 469, cited Brady v Stapleton (1952) 88 CLR 322, cited Ex parte Barrell; In re Parnell (1875) LR 10, applied Foran v Wight (1989) 168 CLR 385, cited Howe v Smith (1884) 27 Ch D 89, considered Re Burman [1993] 1 Qd R 49, applied Willmot Growers Group Inc v Willmot Florists Ltd (Recs and Mgrs. apptd) (in liq) & Ors (2013) 251 CLR 592, distinguished Bankruptcy Act 1966 (Cth) s 5, s 115(1), s 121, s 122, s 123, s 133(1A), s 133(2)
COUNSEL:	Dr M Jonsson for the Applicants CJ Ryall for the First Respondents No appearance for the Second Respondent
SOLICITORS:	Williams Graham Carman Solicitors for the Applicants Devenish Law for the First Respondent No appearance for the Second Respondent