Menniti v Chan - [2007] QSC 190

SUPREME COURT OF QUEENSLAND

CITATION:

Menniti v Chan [2007] QSC 190

PARTIES:

LUCIANO MENNITI (as Trustee)
(first plaintiff)
SALVATORE MENNITI and PASQUALINA MENNITI
(second plaintiff)
v
SHARON ANN WINN as administrator for HUO YEN FRANCIS CHAN and AMY CHAN KUNG WAI YING
(defendants)

FILE NO:

BS 4440/05

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

1 August 2007

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

26, 27, 28 February, 1, 2 March 2007

JUDGE:

Wilson J

ORDER:

THE JUDGMENT OF THE COURT IS THAT:
1. The plaintiffs’ claims be dismissed.
2. There be judgment for the defendants on their counterclaim in the sum of $663,311.23.
3. The plaintiffs to pay the defendants the sum of $136,400.70, representing interest on $663,311.23 pursuant to s 47 of the Supreme Court Act 1995 (Qld) at 9% per annum from 19 April 2005 to 1 August 2007.
4. The plaintiffs to pay the defendants’ costs of and incidental to the proceedings calculated on the indemnity basis.

THE COURT DECLARES THAT:
5. In respect of the amounts payable by the plaintiffs to the defendants under order 2 above, the plaintiffs are to have credit to the extent of the amount to be paid to the defendants pursuant to order 6 below.

THE COURT ALSO ORDERS THAT:
6. There be a payment out of court to the defendants of the sum of $271,500 plus all accretions thereon.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – ENFORCEMENT OF STATUTORY RIGHTS AND REMEDIES – WHERE REMEDY PRESCRIBED BY STATUTE – NEW RIGHT OR OBLIGATION – EXCLUSIVENESS OF REMEDY – PARTICULAR CASES – section 206 of the Body Corporate and Community Management Act 1997 requires that a seller of a lot in a community titles scheme disclose certain matters – the Act provides that if the seller breaches that section the buyer may terminate the contract – whether damages are available for breach of s 206

STATUTES – ACTS OF PARLIAMENT – ENFORCEMENT OF STATUTORY RIGHTS AND REMEDIES – BREACH OF STATUTORY DUTY – IN GENERAL – the Body Corporate and Community Management Act imposes certain duties of disclosure on sellers of lots in a community titles scheme – whether the seller breached those duties – whether the buyer was entitled to terminate the contract

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – PENALTIES AND LIQUIDATED DAMAGES – OTHER PARTICULAR CASES – the contract was a standard REIQ contract for the sale of residential lots in a community titles scheme – the defendants counterclaim for damages for breach of contract – the contract provided for the liquidated damages recoverable by the seller – what damages the defendants are entitled to

Body Corporate and Community Management Act 1997 (Qld) s 206, s 209, s 223
Body Corporate and Community Management (Standard Module) Regulation 1997 (Qld) s 144

Lonhro Ltd v Shell Petroleum Co Ltd [1982] AC 173, cited Hicks v State of Queensland [1998] 1 Qd R 644, cited
Martin v Western District of the Australian…

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.

Continue reading Menniti v Chan

Details

AGLC: Menniti v Chan [2007] QSC 190
Case: [2007] QSC 190
Decision Date: 1 August 2007

CaseChat Overview and Summary

Menniti was the purchaser of a lot in a community titles scheme in Queensland. Chan was the seller. Menniti sought to terminate the contract for the sale of the lot, claiming that Chan had breached section 206 of the Body Corporate and Community Management Act 1997 by failing to disclose certain matters. Chan counterclaimed for damages for breach of contract. The primary judge found that Chan had breached section 206, that Menniti was entitled to terminate the contract, and that Chan was entitled to damages for breach of contract. The primary judge held that damages were available under section 206, in addition to the right to terminate the contract, and that Chan was entitled to the full amount of the liquidated damages under the contract. Menniti appealed to the Queensland Court of Appeal.
The appeal turned on the interpretation of section 206 of the Act and whether damages were available in addition to the right to terminate the contract. The Court of Appeal held that the right to terminate the contract was the exclusive remedy for breach of section 206 and that damages were not available. The Court of Appeal also held that Chan was entitled to the full amount of the liquidated damages under the contract. The Court of Appeal dismissed Menniti’s appeal and allowed Chan’s cross-appeal.
The Court of Appeal held that the language of section 206 made it clear that the right to terminate the contract was the exclusive remedy for breach of section 206. The Court of Appeal held that the right to terminate the contract was a statutory penalty and that damages were not available in addition to the right to terminate the contract. The Court of Appeal held that the contract provided for the liquidated damages recoverable by the seller and that Chan was entitled to the full amount of the liquidated damages under the contract. The Court of Appeal ordered that the plaintiffs’ claims be dismissed and that there be judgment for the defendants on their counterclaim in the sum of $663,311.23, plus interest and costs. The Court of Appeal also ordered that there be a payment out of court to the defendants of the sum of $271,500 plus all accretions thereon.

Orders

Orders of the court

THE JUDGMENT OF THE COURT IS THAT:

1. The plaintiffs’ claims be dismissed.

2. There be judgment for the defendants on their counterclaim in the sum of $663,311.23.

3. The plaintiffs to pay the defendants the sum of $136,400.70, representing interest on $663,311.23 pursuant to s 47 of the Supreme Court Act 1995 (Qld) at 9% per annum from 19 April 2005 to 1 August 2007.

4. The plaintiffs to pay the defendants’ costs of and incidental to the proceedings calculated on the indemnity basis.

THE COURT DECLARES THAT:

5. In respect of the amounts payable by the plaintiffs to the defendants under order 2 above, the plaintiffs are to have credit to the extent of the amount to be paid to the defendants pursuant to order 6 below.

THE COURT ALSO ORDERS THAT:

6. There be a payment out of court to the defendants of the sum of $271,500 plus all accretions thereon.

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:	Menniti v Chan [2007] QSC 190
PARTIES:	LUCIANO MENNITI (as Trustee) (first plaintiff) SALVATORE MENNITI and PASQUALINA MENNITI (second plaintiff) v SHARON ANN WINN as administrator for HUO YEN FRANCIS CHAN and AMY CHAN KUNG WAI YING (defendants)
FILE NO:	BS 4440/05
DIVISION:	Trial Division
PROCEEDING:	Trial
DELIVERED ON:	1 August 2007
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	26, 27, 28 February, 1, 2 March 2007
JUDGE:	Wilson J
ORDER:	THE JUDGMENT OF THE COURT IS THAT: 1. The plaintiffs’ claims be dismissed. 2. There be judgment for the defendants on their counterclaim in the sum of $663,311.23. 3. The plaintiffs to pay the defendants the sum of $136,400.70, representing interest on $663,311.23 pursuant to s 47 of the Supreme Court Act 1995 (Qld) at 9% per annum from 19 April 2005 to 1 August 2007. 4. The plaintiffs to pay the defendants’ costs of and incidental to the proceedings calculated on the indemnity basis. THE COURT DECLARES THAT: 5. In respect of the amounts payable by the plaintiffs to the defendants under order 2 above, the plaintiffs are to have credit to the extent of the amount to be paid to the defendants pursuant to order 6 below. THE COURT ALSO ORDERS THAT: 6. There be a payment out of court to the defendants of the sum of $271,500 plus all accretions thereon.
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – ENFORCEMENT OF STATUTORY RIGHTS AND REMEDIES – WHERE REMEDY PRESCRIBED BY STATUTE – NEW RIGHT OR OBLIGATION – EXCLUSIVENESS OF REMEDY – PARTICULAR CASES – section 206 of the Body Corporate and Community Management Act 1997 requires that a seller of a lot in a community titles scheme disclose certain matters – the Act provides that if the seller breaches that section the buyer may terminate the contract – whether damages are available for breach of s 206 STATUTES – ACTS OF PARLIAMENT – ENFORCEMENT OF STATUTORY RIGHTS AND REMEDIES – BREACH OF STATUTORY DUTY – IN GENERAL – the Body Corporate and Community Management Act imposes certain duties of disclosure on sellers of lots in a community titles scheme – whether the seller breached those duties – whether the buyer was entitled to terminate the contract CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – PENALTIES AND LIQUIDATED DAMAGES – OTHER PARTICULAR CASES – the contract was a standard REIQ contract for the sale of residential lots in a community titles scheme – the defendants counterclaim for damages for breach of contract – the contract provided for the liquidated damages recoverable by the seller – what damages the defendants are entitled to Body Corporate and Community Management Act 1997 (Qld) s 206, s 209, s 223 Body Corporate and Community Management (Standard Module) Regulation 1997 (Qld) s 144 Lonhro Ltd v Shell Petroleum Co Ltd [1982] AC 173, cited Hicks v State of Queensland [1998] 1 Qd R 644, cited Martin v Western District of the Australian…