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Mango Boulevard Pty Ltd v Mio Art Pty Ltd

Mango Boulevard Pty Ltd v Mio Art Pty Ltd

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Case Copied 20 September 2013 75 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Mango Boulevard Pty Ltd & Anor v Mio Art Pty Ltd & Ors [2013] QCA 271

PARTIES:

MANGO BOULEVARD PTY LTD
ACN 101 544 601
(first appellant)
BMD HOLDINGS PTY LTD
ACN 010 093 348
(second appellant)
v
MIO ART PTY LTD AS TRUSTEE OF THE SPENCER FAMILY TRUST
ACN 121 010 875
(first respondent)
SILVANA PEROVICH
(second respondent)
ROBERT WILLIAM WHITTON AS TRUSTEE OF THE BANKRUPT ESTATE OF SILVANA PEROVICH
(third respondent)

FILE NO/S:

Appeal No 11808 of 2012
SC No 1714 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

2 April 2013

JUDGES:

Fraser and Gotterson JJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Dismiss the appeal and cross-appeal.

2. The appellants are to pay the respondents’ costs of the appeal and the cross-appeal.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the parties entered a number of contracts to give effect to a joint venture for the purchase and redevelopment of land at Mango Hill (‘the Property’) – where one of the contracts entered into, a share sale agreement (‘SSA’), provided a procedure by which a valuation of the Property could be obtained – where the valuation of the Property was to be undertaken by an independent valuer – where the SSA allowed for a party dissatisfied with the valuation to obtain an alternative valuation – where, in the event the valuation and alternative valuation were within 10 per cent of one another, the valuation would be taken to be the average of the two valuations – where the SSA provided that if the difference was more than 10 per cent, the dissatisfied party could request the parties go to mediation and then arbitration – where the parties obtained a valuation and an alternative valuation – where the first appellant alleged that the alternative valuation was not an alternative valuation for the purposes of the SSA – where, after the first respondent had commenced proceedings, it obtained a second alternative valuation – where the difference between the valuations was more than 10 per cent – where the trial judge ordered that the dispute be referred to mediation – where the respondents filed a notice of cross-appeal to the effect that, if both alternative valuations were found to be ineffective, the valuation should also be held to be ineffective – whether the valuation, alternative valuation or second alternative valuations were valuations for the purposes of the SSA – whether the dispute should be referred to mediation in accordance with the procedure in the SSA

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – OTHER CASES – where the identity of the valuer who prepared the alternative valuation was not…

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: [2013] QCA 271
Decision Date: 20 September 2013

CaseChat Overview and Summary

Mango Boulevard Pty Ltd, a company involved in a joint venture with Mio Art Pty Ltd for the purchase and redevelopment of land, initiated legal proceedings against Mio Art Pty Ltd. The crux of the dispute centred on the valuation of the land in question, as stipulated by a share sale agreement (SSA) between the parties. The SSA outlined a specific procedure for obtaining a valuation, which included the option for an alternative valuation if a party was dissatisfied with the initial valuation. The agreement further stipulated that if the initial and alternative valuations differed by more than 10 per cent, the matter would proceed to mediation and then arbitration. The appellants contested the validity of the second alternative valuation, asserting that it was not an alternative valuation under the SSA's terms. This dispute led to the appellants appealing the trial judge's decision, while the respondents filed a cross-appeal regarding the implications if both alternative valuations were deemed invalid.

The primary legal issues the court had to address were whether the valuations obtained complied with the SSA's requirements, specifically regarding the notification of the identity of the valuer and the timing of the alternative valuations. The appellants argued that there was an implied term in the SSA that required the identity of the valuer to be disclosed before an alternative valuation could be arranged. Additionally, they contended that there was an implied term that an alternative valuation should be provided within a reasonable time. The court had to determine whether the SSA contained these implied terms and whether the alternative valuations met the conditions outlined in the agreement.

The court examined the language of the SSA and the circumstances surrounding the valuation process. It found that the first alternative valuation was invalid because the identity of the valuer was not disclosed to the appellants before the valuation was arranged, which was a critical requirement under the SSA. Consequently, the court rejected the appellants' argument that there was an implied term necessitating notification of the valuer's identity prior to arranging the second alternative valuation. Regarding the timing of the alternative valuations, the court held that there was no implied term in the SSA requiring an alternative valuation to be provided within a reasonable time. The court concluded that the dispute should proceed to mediation as stipulated in the SSA.

The court dismissed both the appeal and the cross-appeal, ordering that the appellants pay the respondents' costs associated with both the appeal and the cross-appeal. This decision affirmed the trial judge's order that the dispute be referred to mediation and upheld the respondents' stance on the valuation process.

Orders

Orders of the court

1. Dismiss the appeal and cross-appeal.

2. The appellants are to pay the respondents’ costs of the appeal and the cross-appeal.

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:	Mango Boulevard Pty Ltd & Anor v Mio Art Pty Ltd & Ors [2013] QCA 271
PARTIES:	MANGO BOULEVARD PTY LTD ACN 101 544 601 (first appellant) BMD HOLDINGS PTY LTD ACN 010 093 348 (second appellant) v MIO ART PTY LTD AS TRUSTEE OF THE SPENCER FAMILY TRUST ACN 121 010 875 (first respondent) SILVANA PEROVICH (second respondent) ROBERT WILLIAM WHITTON AS TRUSTEE OF THE BANKRUPT ESTATE OF SILVANA PEROVICH (third respondent)
FILE NO/S:	Appeal No 11808 of 2012 SC No 1714 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	20 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	2 April 2013
JUDGES:	Fraser and Gotterson JJA and Peter Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Dismiss the appeal and cross-appeal. 2. The appellants are to pay the respondents’ costs of the appeal and the cross-appeal.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the parties entered a number of contracts to give effect to a joint venture for the purchase and redevelopment of land at Mango Hill (‘the Property’) – where one of the contracts entered into, a share sale agreement (‘SSA’), provided a procedure by which a valuation of the Property could be obtained – where the valuation of the Property was to be undertaken by an independent valuer – where the SSA allowed for a party dissatisfied with the valuation to obtain an alternative valuation – where, in the event the valuation and alternative valuation were within 10 per cent of one another, the valuation would be taken to be the average of the two valuations – where the SSA provided that if the difference was more than 10 per cent, the dissatisfied party could request the parties go to mediation and then arbitration – where the parties obtained a valuation and an alternative valuation – where the first appellant alleged that the alternative valuation was not an alternative valuation for the purposes of the SSA – where, after the first respondent had commenced proceedings, it obtained a second alternative valuation – where the difference between the valuations was more than 10 per cent – where the trial judge ordered that the dispute be referred to mediation – where the respondents filed a notice of cross-appeal to the effect that, if both alternative valuations were found to be ineffective, the valuation should also be held to be ineffective – whether the valuation, alternative valuation or second alternative valuations were valuations for the purposes of the SSA – whether the dispute should be referred to mediation in accordance with the procedure in the SSA CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – OTHER CASES – where the identity of the valuer who prepared the alternative valuation was not…