Marminta Pty Ltd v French - [2002] QSC 423

SUPREME COURT OF QUEENSLAND

CITATION: Marminta Pty Ltd v French [2002] QSC 423

PARTIES: MARMINTA PTY LTD
(Plaintiff)
v
RUSTY FRENCH
(Defendant)

FILE NO: S187/2002

DIVISION: Trial Division

DELIVERED ON: 13 December 2002

DELIVERED AT: Rockhampton

HEARING DATE: 3,4 and 5 December 2002

JUDGE: Dutney J

ORDERS: Judgment in the action for the plaintiff in the sum of $50,000.

CATCHWORDS: CONTRACT – ABANDONMENT – whether two pieces of correspondence together constituted a binding agreement for sale and purchase of mortgages – where essentiality of time for payment of deposit by purchaser waived by vendor - whether there was a subsequent variation of the agreement – where s59 Property Law Act 1974 not satisfied – whether original agreement abandoned by vendor and purchaser

SPECIFIC PERFORMANCE – PART PERFORMANCE – where original agreement abandoned – where subsequent variation non-existent or fails for want of writing – whether purchaser performed sufficient acts of part performance to warrant an order for specific performance by the Court – whether acts unequivocally and in their own nature referable to some such contract of the general nature alleged
ESTOPPEL – EQUITABLE ESTOPPEL – whether vendor estopped from resiling from the variation (if any) – whether vendor estopped from relying on want of writing of the variation (if any) – where no identified representation by the vendor upon which the purchaser could have relied to its detriment – whether unconscionable
CONTRACT – CONSIDERATION – FAILURE OF CONSIDERATION – MISTAKE – where “non-refundable” deposit paid by purchaser - where vendor denies the existence of a binding agreement - where purchaser mistakenly believed that it was under a legal obligation to pay the money– where no honest belief on the part of the vendor that he was entitled to receive and retain the money – where no consideration was given for the payment
Property Law Act 1974 (Qld), s59
Baltic Shipping Co v Dillon (1992-1993) 176 CLR 344, applied
Barclays Bank Ltd v WJ Simms Son & Cooke (Southern) Ltd [1980] QB 677, cited
David Securities Pty Ltd v Commonwealth Bank of Australia (1991-1992) 175 CLR 353, followed
Dowling & Others v Rae (1927) 39 CLR 363, cited
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1977-1978) 138 CLR 423, followed
Lirstis Holdings Pty Ltd v Wallville Pty Ltd [2001] NSWSC 428, followed
Louinder v Leis (1982) 149 CLR 509, cited
McPhail v Darby (1879) 2 SCR (NSW)(NS)225, cited
Masters v Cameron (1954) 91 CLR 353, discussed
Phillips v Ellison Bros Pty Ltd (1941) 65 CLR 221, cited
Regent v Millett (1976) 133 CLR 679, followed
Rover International Ltd v Cannon Film Ltd [1989] 1 WLR 912, cited
Tallerman & Co Pty Ltd v Nathan’s Merchandise (Victoria) Pty Ltd (1956) 98 CLR 93, cited
Wacal Investments Pty Ltd v Hurley [1992] 1 Qd R 455, cited

COUNSEL:Mr JF Curran for the Plaintiff
Mr PS Hack SC for the Defendant

SOLICITORS: Robert Harris and Co for the Plaintiff

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: [2002] QSC 423
Decision Date: 13 December 2002

CaseChat Overview and Summary

The case of Marminta Pty Ltd v French involved a dispute over the sale and purchase of mortgages on a piece of land in Yeppoon, Queensland. The plaintiff, Marminta Pty Ltd, sought specific performance of a contract for the purchase of mortgages from the defendant, Mr Rusty French. The primary issue before the court was whether a binding contract existed between the parties for the sale of the mortgages, and if so, whether it could be enforced despite the absence of a written agreement. The court had to consider whether the parties' correspondence constituted a binding contract, whether there was a subsequent variation of the agreement, and if Marminta could claim specific performance or repayment of a deposit.

The court found that the correspondence between the parties did constitute a binding contract for the purchase of the mortgages, which was conditional upon the payment of a deposit. The court ruled that the contract was not void due to the absence of a written agreement, as the parties' conduct demonstrated an intention to be immediately bound by the terms. However, the court also found that any subsequent agreement to vary the terms of the contract was unenforceable due to the lack of a written agreement, as required by section 59 of the Property Law Act 1974. As a result, the original contract was deemed to have been mutually abandoned by the parties.

The court further found that Marminta was entitled to recover the $50,000 deposit paid under the contract, as the contract had been abandoned, and there was no valid agreement to retain the deposit. The court held that Mr French was not entitled to retain the deposit because he never acknowledged any binding agreement with Marminta and continued to market the land for sale to other parties.

In conclusion, the court ordered judgment in favour of the plaintiff, Marminta Pty Ltd, in the sum of $50,000 for the recovery of the deposit paid under the contract. The court will hear the parties on the issue of costs.

Orders