McLeod & Harris v Beaudesert Developments Pty Ltd

[1993] QCA 58

[1993] QCA 058

COURT OF APPEAL

MACROSSAN CJ McPHERSON JA BYRNE J

CA No 163 of 1992

RODNEY CLIFFORD McLEOD

and

FAY LORRAINE HARRIS	Appellant (Plaintiffs)
and
BEAUDESERT DEVELOPMENTS PTY LTD	Respondent (Defendant)
BRISBANE ..DATE 15/02/93
JUDGMENT

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150293 T 11/SA M/T COA3131/93
THE CHIEF JUSTICE: This is an appeal from the District Court.

Even though the appeal raises issues of costs and interest only, it is not contested on behalf of the respondent that the appeal is as of right under one heading or other of section 92 subsection 1 of the District Court Act.

The proceedings below arose out of a contract for the sale of what had been vacant land. The contract was dated November 1989, and provided, initially, for a settlement of the contract to occur on 10 May 1990. Part of the purchase price was paid under the contract but the matter was not, in fact, settled on 10 May 1990.

The parties agreed between themselves on an extension to 10 August 1990. Thereafter, the appellant purchasers sought a further extension for a period of two months. This was not granted by the vendor, although 30 days' extension was offered on condition that the contractual interest rate of 20 per cent was paid.

The Judge considered all the various issues raised on these matters involving the correct settlement date and found that, in the circumstances, it was fixed for 10 September 1990 as a result of the parties acts. He found also that that was the

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date which should be accepted as one with time of the essence
characteristics applied to it.

The purchasers did not settle on that date. Subsequently the vendor declined to settle although requested at a later date, so the purchasers issued a writ. They issued their writ on 15 October 1990, and broadly, it is sufficient to say for present purposes that they claimed specific performance or restitution. Restitution was claimed, not only because part of the purchase price had been paid, but because under the arrangements between the parties, a house had been built at the purchasers' expense on the land while the contract was still running. In the proceedings below, the value of the house was considered.

Now, having heard the matter, the trial Judge made an order, having offered, in effect, a choice to the parties after he made his detailed findings. In the course of his reasons, which were reasonably lengthy, the Judge referred to the High Court case of Legione v. Hateley and said that the Court had jurisdiction to grant specific performance on conditions, if necessary, by way of relief against forfeiture of a purchaser's interest under a contract in an exceptional case where it would be inequitable or unconscionable to insist on forfeiture. The Judge was, understandably, very much

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influenced by the fact that during the period when the contract was awaiting settlement the purchasers had, at their expense, built a house on the land, as I have already said.

The Judge found against the purchasers' case which sought to contend that the contractual date as altered in the circumstances was later than 10 September 1990 and which sought to maintain a position that the purchasers were not in breach under the contract. On those matters, the purchasers failed. He did, however, offer what, in my opinion, it is correct to describe as relief against forfeiture. He offered to the parties a choice of orders which he was contemplating in two forms.

The first was that equitable relief appropriate in the circumstances could be accorded by an order that, on the plaintiffs paying to the defendant the balance of the purchase price, which he named, together with interest on it at the rate of 20 per cent from 10 August 1990 to the day of judgment, there be a transfer of the land to the plaintiffs.

He thought that a similar result could be achieved by an alternative form of order which he announced, namely that the property be placed in the hands of real estate agents for sale

at the best price obtainable, and that out of the net

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proceeds, after expenses were deducted, there should be a distribution to the defendant of $19,800, which was the balance of the purchase price, again together with interest calculated in the way that I have already described, with the balance going to the plaintiffs.

He intimated that, in his view, the former form of order was the preferred one, as it avoided certain practical complications. He noted that it bore the appearance of an order for specific performance under a different guise, but he declared that that was fortuitous. His reasoning is disclosed by his remark that he thought it was the most practicable way of granting equitable relief to the purchasers, whether by way, as he put it, of restitution unjust enrichment or against forfeiture.

The parties debated the choice which they had been offered to some extent, and in the end the order which the Court made was in the form of the former option, to which I have referred.

As well as ordering in that fashion, His Honour ordered that the defendant vendor recover against the plaintiffs one-third of the defendant's costs of and incidental to the action. In this way wen the respondents have had the advantage of the order below of one-third of their costs of the action, and they have had the advantage as well of that part of the order

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which gave them interest on the unpaid balance of the purchase
money over the period that I have referred to.

On behalf of the appellants it is suggested that these orders are both impeachable and in the first instance the contention is that the appellants should have had all of their costs below. If that submission is not accepted as correct, the appellants still contend that the order for costs which was made cannot be justified and say it should be regarded as not conforming with any reasonable discretion which applied in the circumstances. There is no doubt then, that the effect of the principal order which was made below was one of relief against forfeiture, and that order which was made and which has this character as it appears to me is not subject to challenge before us.

The trial Judge then had to allow for the fact that the vendor was held out of the balance of his purchase price due to the purchasers' failure to settle the contract on the due date.

He had to allow for the extent to which the purchasers were being accorded relief. However, apart from the relief against forfeiture it remained a fact that the purchasers were in breach under the contract and initially responsible for its not having been settled in accordance with its terms. That issue was litigated at the trial, and on that issue the

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purchasers failed.

It does not appear to me that the form of order which his Honour made, whether in relation to costs or interests, is in any way one which is unjust in its allowance for the issues raised. It seems to me adequately to allow for the issues as fought, and for the result which he was disposed to order. In my opinion the orders made which are now challenged were, in fact, made within the area of the trial Judge's discretion, and they were in neither case orders which he was precluded from making. It was not suggested to us that under rule 363 of the District Court Rules the trial Judge was precluded from exercising a discretion which was appropriate in the circumstances.

In my opinion the appeal should be refused and appropriate costs order in this Court should accompany that dismissal.

MR QUINN: I ask for costs.

McPHERSON JA: The appeal should be dismissed for the reasons given by The Chief justice.

BYRNE J: I agree.

THE CHIEF JUSTICE: Yes. Yes, Mr Quinn. You have -----

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MR QUINN: I ask for costs.
BYRNE J: Yes. Can't resist that, Mr Cooke, really, can you?
MR COOKE: I've been very unsuccessful this morning, Your
Honour, yes.
THE CHIEF JUSTICE: Very nearly, did you say?
MR COOKE: Very unsuccessful.
THE CHIEF JUSTICE: Oh, yes.
MR COOKE: Totally unsuccessful.

THE CHIEF JUSTICE: Yes. Yes. No. Thank you, Mr Cooke. Yes.

Well, the appeal will be dismissed with costs. Thank you.

_____

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