MFB Properties (NQ) Pty Ltd v MSD Securities Pty Ltd - [2018] QCA 259

SUPREME COURT OF QUEENSLAND

CITATION:

MFB Properties (NQ) Pty Ltd & Ors v MSD Securities Pty Ltd & Ors [2018] QCA 259

PARTIES:

MFB PROPERTIES (NQ) PTY LTD
ACN 101 980 303
(first appellant/first cross-respondent)
THE JUNGLE VILLAGE PTY LTD
ACN 098 067 077
(second appellant/second cross-respondent)
ASHLEE JANE PIPER
(third appellant/third cross-respondent)
MARK FREDERICK DAVID BIANCOTTI
(fourth appellant/fourth cross-respondent)
v
MSD SECURITIES PTY LTD AS TRUSTEE FOR THE BRUNSWICK STREET TRUST
ACN 160 362 345
(first respondent/first cross-appellant)
PK’S RESORT PTY LTD
ACN 168 348 730
(second respondent/second cross-appellant)
MARK LEONARD SEABROOK
(third respondent/third cross-appellant)
DAVID BRUCESMITH
(fourth respondent/fourth cross-appellant)

FILE NO/S:

Appeal No 9085 of 2017
SC No 13256 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2017] QSC 168 (Bond J)

DELIVERED ON:

9 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2018

JUDGES:

Sofronoff P and Morrison and McMurdo JJA

ORDERS:

1.   The appeal is allowed.

2.   The orders made on 18 August 2017 are set aside.

3.   The respondents are to pay the appellants’ costs of the appeal to be assessed on the standard basis.

4.   The orders for costs made on 28 November 2017 are set aside and in lieu thereof the respondents to the appeal are to pay the appellants’ costs of and incidental to proceeding No. 13256 of 2016, including reserved costs if any, to be assessed on the standard basis.

5.   The cross-appeal is dismissed.

6.   The cross-appellants are to pay the cross-respondents’ costs of the cross-appeal to be assessed on the standard basis.

7.   Orders 1, 5, 6 and 7 made on 11 December 2017 are set aside.

8.   Orders 3 and 4 made on 11 December 2017 are set aside and in lieu thereof the respondents are to pay the appellants’ costs of the applications filed on 1 September 2017 and 22 September 2017, to be assessed on the standard basis.

9.   The matter is remitted to the Trial Division to permit implementation and enforcement of the orders made by Flanagan J in proceeding No. 2575 of 2016 on 28 November 2016.

CATCHWORDS:

CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – INSTALMENT CONTRACTS – STATUTORY RESTRICTIONS ON RESCISSION OR TERMINATION OF INSTALMENT CONTRACT OR FORFEITURE OF INSTALMENTS OF PURCHASE PRICE – where the appellants and respondents were parties to a number of agreements, the purpose of which was to sell four parcels of land (Lots 1, 2, 3 and 4) and a resort business conducted on those parcels from the first, second and third appellants to the first and second respondents – where the four appellants and four respondents all entered into a deed – where the four appellants and four respondents were variously parties to six contracts of sale and purchase – where the parcels of land and business were to be purchased for a total consideration of $4 million – where the parties varied their agreement, the effect of which was that the transfer of…

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.

Keep reading for free

Create a free CaseChat account to read MFB Properties (NQ) Pty Ltd v MSD Securities Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] QCA 259
Decision Date: 9 October 2018

CaseChat Overview and Summary

In MFB Properties (NQ) Pty Ltd v MSD Securities Pty Ltd, the dispute centred around the sale of four parcels of land (Lots 1, 2, 3 and 4) and a resort business conducted on those parcels from the appellants to the respondents. The parties had entered into a deed and various contracts of sale and purchase, with the total consideration amounting to $4 million. The third and fourth respondents had transferred property in consideration for the transfer of Lot 1, but were not the purchasers of Lots 1, 2, and 4 under the REIQ contract and did not stand to gain any interest in the land comprising Lot 1.

The legal issue before the court was whether the contract for the sale of Lots 1, 2 and 4 was an instalment contract within the meaning of s 73 of the Property Law Act 1974 (Qld). The respondents argued that the contract was an instalment contract by virtue of the variation, and therefore voidable by the purchaser any time before completion, due to Lot 1 being encumbered by a mortgage. The court had to determine whether this was indeed the case.

The court found that the contract for the sale of Lots 1, 2 and 4 was not an instalment contract within the meaning of s 73 of the Property Law Act 1974 (Qld). The court held that the variation did not change the fundamental nature of the contract, and that the third and fourth respondents were not the purchasers of Lots 1, 2 and 4 under the REIQ contract. As such, the court found that the contract was not voidable by the purchaser any time before completion due to the encumbrance on Lot 1. The appeal was allowed, and the orders made on 18 August 2017 were set aside. The respondents were ordered to pay the appellants' costs of the appeal to be assessed on the standard basis.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders made on 18 August 2017 are set aside.

3. The respondents are to pay the appellants’ costs of the appeal to be assessed on the standard basis.

4. The orders for costs made on 28 November 2017 are set aside and in lieu thereof the respondents to the appeal are to pay the appellants’ costs of and incidental to proceeding No. 13256 of 2016, including reserved costs if any, to be assessed on the standard basis.

5. The cross-appeal is dismissed.

6. The cross-appellants are to pay the cross-respondents’ costs of the cross-appeal to be assessed on the standard basis.

7. Orders 1, 5, 6 and 7 made on 11 December 2017 are set aside.

8. Orders 3 and 4 made on 11 December 2017 are set aside and in lieu thereof the respondents are to pay the appellants’ costs of the applications filed on 1 September 2017 and 22 September 2017, to be assessed on the standard basis.

9. The matter is remitted to the Trial Division to permit implementation and enforcement of the orders made by Flanagan J in proceeding No. 2575 of 2016 on 28 November 2016.

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:	MFB Properties (NQ) Pty Ltd & Ors v MSD Securities Pty Ltd & Ors [2018] QCA 259
PARTIES:	MFB PROPERTIES (NQ) PTY LTD ACN 101 980 303 (first appellant/first cross-respondent) THE JUNGLE VILLAGE PTY LTD ACN 098 067 077 (second appellant/second cross-respondent) ASHLEE JANE PIPER (third appellant/third cross-respondent) MARK FREDERICK DAVID BIANCOTTI (fourth appellant/fourth cross-respondent) v MSD SECURITIES PTY LTD AS TRUSTEE FOR THE BRUNSWICK STREET TRUST ACN 160 362 345 (first respondent/first cross-appellant) PK’S RESORT PTY LTD ACN 168 348 730 (second respondent/second cross-appellant) MARK LEONARD SEABROOK (third respondent/third cross-appellant) DAVID BRUCESMITH (fourth respondent/fourth cross-appellant)
FILE NO/S:	Appeal No 9085 of 2017 SC No 13256 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2017] QSC 168 (Bond J)
DELIVERED ON:	9 October 2018
DELIVERED AT:	Brisbane
HEARING DATE:	16 February 2018
JUDGES:	Sofronoff P and Morrison and McMurdo JJA
ORDERS:	1. The appeal is allowed. 2. The orders made on 18 August 2017 are set aside. 3. The respondents are to pay the appellants’ costs of the appeal to be assessed on the standard basis. 4. The orders for costs made on 28 November 2017 are set aside and in lieu thereof the respondents to the appeal are to pay the appellants’ costs of and incidental to proceeding No. 13256 of 2016, including reserved costs if any, to be assessed on the standard basis. 5. The cross-appeal is dismissed. 6. The cross-appellants are to pay the cross-respondents’ costs of the cross-appeal to be assessed on the standard basis. 7. Orders 1, 5, 6 and 7 made on 11 December 2017 are set aside. 8. Orders 3 and 4 made on 11 December 2017 are set aside and in lieu thereof the respondents are to pay the appellants’ costs of the applications filed on 1 September 2017 and 22 September 2017, to be assessed on the standard basis. 9. The matter is remitted to the Trial Division to permit implementation and enforcement of the orders made by Flanagan J in proceeding No. 2575 of 2016 on 28 November 2016.
CATCHWORDS:	CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – INSTALMENT CONTRACTS – STATUTORY RESTRICTIONS ON RESCISSION OR TERMINATION OF INSTALMENT CONTRACT OR FORFEITURE OF INSTALMENTS OF PURCHASE PRICE – where the appellants and respondents were parties to a number of agreements, the purpose of which was to sell four parcels of land (Lots 1, 2, 3 and 4) and a resort business conducted on those parcels from the first, second and third appellants to the first and second respondents – where the four appellants and four respondents all entered into a deed – where the four appellants and four respondents were variously parties to six contracts of sale and purchase – where the parcels of land and business were to be purchased for a total consideration of $4 million – where the parties varied their agreement, the effect of which was that the transfer of…