McPhee v Zarb (No 2)

[2002] QSC 28

SUPREME COURT OF QUEENSLAND

CITATION:

McPhee v Zarb & Others (No 2) [2002] QSC 028

PARTIES:

MALCOLM MCPHEE
(plaintiff)
v
SYLVIA ZARB
(first defendant)
LBS HOLDINGS PTY LTD
(second defendant)
AUSTRALASIAN THEATRICAL INVESTMENTS PTY LTD
(third defendant)

FILE NO:

S 6277 of 2001

DIVISION:

Trial Division

PROCEEDING:

Application by plaintiff for summary judgment

DELIVERED ON:

22 February 2002

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2002

JUDGE:

Wilson J

ORDERS:

1.   On the claim, judgment for the plaintiff against the second and third defendants for damages to be assessed.

2.   On the claim, the second and third defendants’ cross-application for summary judgment is dismissed.

3.   On the counterclaim, the second and third defendants’ application for summary judgment is dismissed.

4.   The proceeding is remitted to the District Court at Southport.

5.   The second and third defendants are to pay the plaintiff’s costs of and incidental to the application and cross-application for summary judgment on the claim and his costs of and incidental to the application for summary judgment on the counterclaim, including reserved costs, to be assessed on the Supreme Court scale on the standard basis.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT – where purchasers breached contract for sale of land –measure of vendor’s entitlement to damages – where no evidence of market value of property available

Johnson v Agnew [1980] 1 AC 367 at 401, considered
Johnson v Perez (1988) 66 CLR 351, considered.

COUNSEL:

PW Hackett for the plaintiff
RW Taylor for the first defendant
MP Amerena for the second and third defendants

SOLICITORS:

Robinson & Robinson for the plaintiff
Gadens Lawyers Gold Coast for the first defendant
John J Evans for the second and third defendants

1. WILSON J: I delivered reasons for judgment on 8 January 2002. On 15 February 2002 I heard submissions on the orders which should follow and on the assessment of damages payable by the second and third defendants (the purchasers) to the plaintiff (the vendor). Subsequently, the plaintiff and the first defendant (the mortgagee) submitted a draft order disposing of all matters in dispute between them, and I made orders accordingly.

1. The contract between the vendor and the purchasers was made on or about 23 April 2001 (exhibit JJE 1 to the affidavit of John Joseph Evans sworn on 3 October 2001 and filed by leave on 5 October 2001). On the Reference Schedule the purchase price was shown as $120,000-00. Against the side heading “Property” a real property description was inserted, and beside the printed words “Included Chattels” the words “See Inventry [sic]” were inserted. The inventory contained a list of restaurant equipment, some of it loose (eg crockery, cutlery) and some of it apparently affixed to the premises (eg wall mounted bench, built in sinks). The terms of the contract included the following -

Special Condition 1

“The parties to the contract agree that the purchase price contains an inventory attached with a value to the sum of thirty thousand dollars…