Marminta Pty Ltd v French

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SUPREME COURT OF QUEENSLAND

CITATION:

Marminta P/L v French [2003] QCA 541

PARTIES:

MARMINTA PTY LTD ACN 060 701 626
(plaintiff/appellant/cross-respondent)
v
RUSTY FRENCH
(defendant/respondent/cross-appellant)

FILE NO/S:

Appeal No 11719 of 2002
SC No 187 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

5 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2003

JUDGES:

Williams and Jerrard JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal and cross appeal in CA No 11719 of 2002 allowed

2.   The orders numbered 1, 2 and 3, made 13 December 2002 in action number S187 of 2002 are set aside

3.   In lieu thereof it is ordered:

(a)   That the agreement by which Marminta Pty Ltd agreed to purchase from Rusty French the mortgages registered as C603556M and C595956F be specifically performed and carried into execution

(b)  That upon payment by Marminta Pty Ltd to the respondent within six weeks of the date of publication of these orders of the sum of $900,000.00 together with interest at 8% per annum on $450,000.00 from 30 April 2000 to 30 June 2000 and interest at 8% per annum on $900,000.00 from 30 June 2000 to the date of payment, Rusty French do all acts and sign and deliver all documents necessary to transfer those mortgages to Marminta Pty Ltd and to enable it to become the registered proprietor of those mortgages; and in the event of the default by Marminta Pty Ltd in compliance with this order number 3(b) then Rusty French be discharged from compliance with this order and his obligations under the said agreement

(c)   That the parties have liberty to make written submissions within 21 days of the date of publication of these orders as to the form of the orders and to costs and that unless otherwise ordered by this court the respondent pay the costs of and incidental to the action to be assessed on a standard basis

(d)  That each party has liberty to apply

(e)   That the respondent pay the costs of and incidental to the appeal to be assessed on a standard basis

(f)    That unless otherwise ordered by this court each party bear their own costs of the cross appeal

(g)   That Queensland Premier Mines Pty Ltd be included as a party (a second appellant) to the appeal and that the respondent pay the second appellant’s costs of and incidental to application number 72 of 2002 to be assessed on the standard basis

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – STATUTE OF FRAUDS, SECTION 4 – NON-COMPLIANCE WITH STATUTE – DOCTRINE OF PART PERFORMANCE – WHAT ACTS CONSTITUTE PART PERFORMANCE – ACTS NOT CONSTITUTING PART PERFORMANCE – where appellant entered into agreement with respondent to the effect that the respondent would sell and assign to appellant his interest as registered mortgagee in two mortgages and as unpaid creditor in the…

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Details
Case
[2003] QCA 541
Decision Date

CaseChat Overview and Summary

Marminta Pty Ltd, the appellant, brought an action against Rusty French, the respondent, regarding the enforcement of a contract. The contract was for the sale of two mortgages and related debts. The appellant paid a non-refundable deposit but argued that the agreement was enforceable despite the respondent's non-compliance with the Statute of Frauds, section 4. The respondent argued that the agreement was unenforceable due to lack of compliance with the statute. The appellant also sought specific performance of the contract, arguing that the respondent had repudiated the agreement. The respondent denied any repudiation and argued that the agreement had been abandoned by mutual consent.

The central legal issues in the case were whether the appellant's acts constituted part performance of the contract, thereby making it enforceable despite non-compliance with the Statute of Frauds. Additionally, the court had to determine whether the inactivity of both parties indicated a mutual intention to abandon the agreement, and if so, whether such an abandonment had occurred. The court also had to decide on the appropriate remedy for the appellant if the contract was found to be enforceable.

The court found that the appellant's actions did not unequivocally refer to the contract in question, and thus the doctrine of part performance did not apply. The court also determined that the inactivity of both parties did not indicate a mutual intention to abandon the agreement. Regarding the remedy, the court found that specific performance was appropriate, with the appellant to pay certain sums and interest, and the respondent to transfer the mortgages upon receipt of the payment. The court ordered that the respondent pay the costs of the action, appeal, and cross-appeal, and that Queensland Premier Mines Pty Ltd be included as a second appellant with costs to be paid by the respondent.

Orders

Orders of the court

1. Appeal and cross appeal in CA No 11719 of 2002 allowed

2. The orders numbered 1, 2 and 3, made 13 December 2002 in action number S187 of 2002 are set aside

3. In lieu thereof it is ordered:

(a) That the agreement by which Marminta Pty Ltd agreed to purchase from Rusty French the mortgages registered as C603556M and C595956F be specifically performed and carried into execution

(b) That upon payment by Marminta Pty Ltd to the respondent within six weeks of the date of publication of these orders of the sum of $900,000.00 together with interest at 8% per annum on $450,000.00 from 30 April 2000 to 30 June 2000 and interest at 8% per annum on $900,000.00 from 30 June 2000 to the date of payment, Rusty French do all acts and sign and deliver all documents necessary to transfer those mortgages to Marminta Pty Ltd and to enable it to become the registered proprietor of those mortgages; and in the event of the default by Marminta Pty Ltd in compliance with this order number 3(b) then Rusty French be discharged from compliance with this order and his obligations under the said agreement

(c) That the parties have liberty to make written submissions within 21 days of the date of publication of these orders as to the form of the orders and to costs and that unless otherwise ordered by this court the respondent pay the costs of and incidental to the action to be assessed on a standard basis

(d) That each party has liberty to apply

(e) That the respondent pay the costs of and incidental to the appeal to be assessed on a standard basis

(f) That unless otherwise ordered by this court each party bear their own costs of the cross appeal

(g) That Queensland Premier Mines Pty Ltd be included as a party (a second appellant) to the appeal and that the respondent pay the second appellant’s costs of and incidental to application number 72 of 2002 to be assessed on the standard basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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