Millard v. Verhagen & Anor

DISTRICT COURT OF QUEENSLAND

CITATION:

Millard v Verhagen & Anor [2008] QDC 182

PARTIES:

WAYNE STANLEY MILLARD

Applicant/Defendant

V

PETER VERHAGEN

First Respondent/First Plaintiff

AND

WILLHELMINA VERHAGEN

Second Respondent/Second Plaintiff

FILE NO/S:

1398/07

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

1 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2008

JUDGE:

Tutt DCJ

ORDER:

Judgment for Peter and Willhelmina Verhagen against Wayne Stanley Millard in the sum of $16,382.00 plus interest outstanding to the date of judgment.1.      

Millard’s counter-claim against Verhagens is dismissed.2.      

I shall hear the parties further in respect of costs.

CATCHWORDS:

CONSTRUCTION OF CONTRACT – MORTGAGE – whether separate oral agreement made between parties – vendor finance terms – consequence of mortgage terms being changed unilaterally and different from terms of contract – terms of contract not novated by mortgage.

COUNSEL:

Mr D Thomoe for the applicant/defendant

Mr P W Hackett for the first and second respondents/plaintiffs

SOLICITORS:

Robert Bakker Lawyers for the applicant/defendant

Colwell Wright Solicitors for the first and second respondents/plaintiffs

Introduction:

1. This proceeding had originally commenced by way of an originating application by Wayne Stanley Millard (“Millard”) seeking declaratory relief against Peter Verhagen and Willhelmina Verhagen (“Verhagens”) in the nature of a construction summons, but has been continued by the parties by way of a proceeding with an exchange of pleadings whereby the original respondents have become the plaintiffs and the original applicant the defendant.  The plaintiffs Verhagens now claim the sum of $16,382.60 from the defendant Millard, comprising interest outstanding under a mortgage between the parties and a further amount for “goods and services provided to the applicant/defendant”.[1]

   [1]Statement of Claim filed 26 June 2007 pursuant to order of 30 May 2007 by his Honour Judge Brabazon QC DCJ.

1. The proceeding is defended by Millard who also counter-claims against Verhagens seeking declaratory relief under the mortgage.

Facts:

1. On 21 October 2003, Verhagens as Vendor and Millard as Purchaser executed a Business Sale Contract for the sale to Millard of the “Burpengary Seafood Market” owned by Verhagens for the sum of “$90,000.00” excluding “stock in trade” which was estimated at “$30,000.00”.[2]

   [2]See terms of contract, being Exhibit 1 in the proceedings.

1. One of the “Special Conditions” to the contract is “Annexure B”, expressed in the following terms:

“Purchase Price

The purchase price of $90,000 shall be paid as to the sum of $60,000 upon settlement of this contract and the balance of $30,000 shall be paid in accordance with an agreement to be executed by the purchaser and to the satisfaction of the vendor prior to the settlement of this contract and that that agreement shall substantially provide for:

1.   The balance of the purchase price to be paid at a rate of $200 per week for 150 consequtive [sic] weeks from 1^st December 2003.

2.   The purchaser to execute a caveat at the purchasers cost in favour of the vendor over the purchasers property at 270 Victoria Avenue Redcliffe to give…