DISTRICT COURT OF QUEENSLAND
CITATION:
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:
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.
The proceeding is defended by Millard who also counter-claims against Verhagens seeking declaratory relief under the mortgage.
Facts:
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.
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 1st 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…
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- Case
- [2008] QDC 182
- Decision Date
CaseChat Overview and Summary
The legal issues central to the case involved the interpretation of the contract and the effect of any subsequent oral agreements. Specifically, the court needed to determine whether the mortgage terms were altered by a separate oral agreement and if such changes were valid. Additionally, the court had to consider whether the terms of the original contract were novated by the mortgage. The court examined the evidence presented regarding the circumstances under which the mortgage terms were altered and the intentions of the parties involved.
In delivering the judgment, the court found that no separate oral agreement was made between the parties that would alter the terms of the mortgage. The court held that the mortgage terms remained as set out in the original contract, and any unilateral changes made by the defendants were not valid. Consequently, the court ruled in favor of the defendants, awarding them $16,382.00 plus interest from the date of judgment. The plaintiff's counterclaim against the defendants was dismissed. The court indicated that it would hear further submissions from the parties regarding the costs of the proceedings.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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