Mirvac Queensland Pty Ltd v Beioley - [2010] QSC 113

SUPREME COURT OF QUEENSLAND

CITATION:

Mirvac Queensland Pty Ltd v Beioley & Anor [2010] QSC 113

PARTIES:

MIRVAC QUEENSLAND PTY LTD
(ACN 060 411 207)
(Plaintiff)
v
SCOTT JAMES BEIOLEY AND ELAINE BARBARA BEIOLEY
(Defendants)

FILE NO:

5502 of 2009

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

14 December 2009

JUDGE:

McMurdo J

ORDER:

The contract between the plaintiff and the defendants dated 2 July 2007 be specifically performed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – GENERALLY – where the plaintiff agreed to sell to the defendants an apartment in a building that was not yet constructed – where the proposed apartment was identified on a plan by reference to the lot number, the internal area, the area of the two balconies and the total area of the proposed apartment – where each of those areas within the actual apartment was less than indicated on the plan – whether the plaintiff was required to inform the defendants of those changes under the Land Sales Act – whether the plaintiff’s failure to so inform the defendants amounted to a repudiation of the contract – whether those changes in area constituted a breach of contract

Body Corporate and Community Management Act 1997 (Qld) ss 213, 214

Building Units and Group Titles Act1980 (Qld) s 49

Land Sales Act1984 (Qld) ss 21, 22, 25

Land Title Act1994 (Qld) s 175

Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570

Flight v Booth (1834) 1 BING NC 370; 131 ER 1160

Mirvac Queensland Pty Ltd v Horne & Ors [2009] QSC 269

Sunbird Plaza Pty Ltd v Boheto Pty Ltd [1983] 1 Qd R 248

COUNSEL:

M D Martin for the plaintiff

P D Dunning SC with C Jennings for the defendants

SOLICITORS:

ClarkeKann for the plaintiff

Broadley Rees Hogan for the defendants

By a contract of sale dated 2 July 2007, the plaintiff agreed to sell to the defendants an apartment in a building to be constructed near the Brisbane River at Tennyson. The price was $1,542,000 with a deposit of 10 per cent. The contract was to be settled within 14 days after notice from the plaintiff that the proposed community title scheme had been established. The scheme was registered on 28 April 2009 and the plaintiff called for settlement on 12 May 2009. But the defendants did not attend at settlement. Subsequently they purported to terminate the contract on the basis of an alleged non-compliance with s 22 of the Land Sales Act1984 (Qld) (“the LSA”).

The plaintiff seeks specific performance, which the defendants resist upon essentially three bases. The first is that they were entitled to terminate for

non-compliance with s 22. The second is that by insisting upon settlement in disregard of the plaintiff’s alleged obligations under s 22, the plaintiff repudiated the contract which entitled the defendants to terminate it. The third is that…

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.

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Details

Case: [2010] QSC 113
Decision Date: 20 April 2010

CaseChat Overview and Summary

The case of Mirvac Queensland Pty Ltd v Beioley involved the sale of a yet-to-be-constructed apartment by Mirvac Queensland Pty Ltd to the Beioleys. The dispute arose because the actual dimensions of the apartment, including the internal area, balcony areas, and total area, were less than those stated in the contract plan. The Beioleys argued that the reduction in area constituted a breach of contract and that Mirvac was obligated under the Land Sales Act to inform them of these changes. They further contended that Mirvac’s failure to disclose the discrepancies amounted to a repudiation of the contract. The court was tasked with determining whether Mirvac was required to inform the Beioleys of the changes and whether such non-disclosure constituted a breach or repudiation of the contract.

The primary legal issue before the court was whether the changes in the apartment’s dimensions, which were not disclosed to the Beioleys, breached the contract or amounted to a repudiation. Additionally, the court needed to ascertain whether Mirvac was legally obligated under the Land Sales Act to inform the Beioleys of the changes. The court also considered whether the discrepancies, if any, were significant enough to warrant specific performance of the contract, which would compel Mirvac to complete the sale as originally agreed.

In delivering the judgment, the court examined the contract terms, the requirements of the Land Sales Act, and the significance of the discrepancies in the apartment's area. The court found that the changes in area were not significant enough to constitute a breach of contract or a repudiation by Mirvac. Furthermore, it was determined that Mirvac was not required to inform the Beioleys of these minor variations under the Land Sales Act. Given the specific performance clause in the contract, the court ordered that the contract be specifically performed, requiring Mirvac to complete the sale of the apartment to the Beioleys as per the original agreement.

The court’s final order was that the contract dated 2 July 2007 between Mirvac Queensland Pty Ltd and the Beioleys be specifically performed. This means that Mirvac was required to complete the sale of the apartment to the Beioleys according to the terms of the contract, despite the discrepancies in the apartment’s dimensions.

Orders

Orders of the court

The contract between the plaintiff and the defendants dated 2 July 2007 be specifically performed.

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:	Mirvac Queensland Pty Ltd v Beioley & Anor [2010] QSC 113
PARTIES:	MIRVAC QUEENSLAND PTY LTD (ACN 060 411 207) (Plaintiff) v SCOTT JAMES BEIOLEY AND ELAINE BARBARA BEIOLEY (Defendants)
FILE NO:	5502 of 2009
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	20 April 2010
DELIVERED AT:	Brisbane
HEARING DATE:	14 December 2009
JUDGE:	McMurdo J
ORDER:	The contract between the plaintiff and the defendants dated 2 July 2007 be specifically performed.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – GENERALLY – where the plaintiff agreed to sell to the defendants an apartment in a building that was not yet constructed – where the proposed apartment was identified on a plan by reference to the lot number, the internal area, the area of the two balconies and the total area of the proposed apartment – where each of those areas within the actual apartment was less than indicated on the plan – whether the plaintiff was required to inform the defendants of those changes under the Land Sales Act – whether the plaintiff’s failure to so inform the defendants amounted to a repudiation of the contract – whether those changes in area constituted a breach of contract Body Corporate and Community Management Act 1997 (Qld) ss 213, 214 Building Units and Group Titles Act1980 (Qld) s 49 Land Sales Act1984 (Qld) ss 21, 22, 25 Land Title Act1994 (Qld) s 175 Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 Flight v Booth (1834) 1 BING NC 370; 131 ER 1160 Mirvac Queensland Pty Ltd v Horne & Ors [2009] QSC 269 Sunbird Plaza Pty Ltd v Boheto Pty Ltd [1983] 1 Qd R 248
COUNSEL:	M D Martin for the plaintiff P D Dunning SC with C Jennings for the defendants
SOLICITORS:	ClarkeKann for the plaintiff Broadley Rees Hogan for the defendants