Mission Development v Rhett - [2004] QSC 359

SUPREME COURT OF QUEENSLAND

CITATION:

Mission Development v Rhett [2004] QSC 359

PARTIES:

MISSION DEVELOPMENT GROUP PTY LTD ACN 104 027 867
AS TRUSTEE UNDER INSTRUMENT No 706802317
(applicant)
v
RHETT PTY LTD ACN 105 466 546
(respondent)

FILE NO/S:

SC No 431 of 2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

21 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

30 September 2004

JUDGE:

Mackenzie J

ORDER:

1. The application is dismissed.
2. Costs are reserved.

CATCHWORDS:

CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – CAVEATS AGAINST DEALINGS – LAPSE, REMOVAL AND WITHDRAWAL – REMOVAL – where applicant entered into other contracts – where applicant required funds from property in dispute – whether serious issue to be tried – whether on balance of convenience caveat can be set aside

TAXES AND DUTIES – STAMP DUTIES – UNSTAMPED AND IMPROPERLY STAMPED DOCUMENTS – QUEENSLAND – where contract to be stamped formed basis of caveat – where multiplicity of issues to be tried - whether failure to stamp is fatal – whether caveat can be removed because failure to stamp

Duties Act (Qld) 2001, s 487
Land Title Act (Qld) 1994, s 127
Stamp Duties Act (Qld) 1894, s 4A

Burnitt v Pacific Paradise Resort Pty Ltd [2004] QDC 218; DC No 1721 of 2004, 19 July 2004, followed
Caxton Street Agencies Pty Ltd v Korkidas [2002] QSC 210; SC No 1533 of 2002, 28 June 2002, considered
Hoggett v O’Rourke [2000] QSC 387; SC No 11510 of 1999, 2 November 2000, considered

COUNSEL:

J Jacobs for the applicant
A P J Collins for the respondent

SOLICITORS:

Peter Coumbis for the applicant
Quinn & Scattini for the respondent

MACKENZIE J: On 29 August 2003 the applicant grantor and respondent grantee executed a Put and Call option the effect of which was that the respondent grantee was entitled to exercise the Call option between 1 and 8 July 2004. (The “exercise date” in the definitions refers to 8 July 2003 as the end point but it is not in dispute that the relevant date was 8 July 2004). If the Call option was not exercised by 5pm on 8 July 2004 the grantor could, up to 5pm on 15 July 2004, exercise the Put option.

By clause 15, time was expressed to be of the essence of the agreement. Reference will be made to this later. It was not in dispute that there was delay because the grantee pursued town planning issues in connection with the property, of which the grantor was aware. It was common ground that there was a meeting on 17 June 2004 attended by Mr Salter, a director of the applicant, Mr Gulliver, a director of the respondent and an associate of Mr Gulliver’s, Mr Peters. On the applicant’s version the purpose of the meeting was to discuss the possibility of a new option to run to 31 December 2004. According to Mr Salter he was surprised that Mr…

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 Mission Development v Rhett

Details

AGLC: Mission Development v Rhett [2004] QSC 359
Case: [2004] QSC 359
Decision Date: 21 October 2004

CaseChat Overview and Summary

Mission Development Pty Ltd sought to set aside a caveat lodged by Rhett. The property in dispute was the subject of a caveat that was preventing the applicant from selling the property to another party. The dispute was heard in the Queensland Land Court. The primary issue before the court was whether the applicant had established a serious issue to be tried and whether, on the balance of convenience, the caveat could be set aside. The court also needed to determine whether the failure to stamp a contract was fatal and whether the caveat could be removed due to the contract's lack of stamp duty. The applicant argued that it had entered into other contracts and needed funds from the property in dispute, making it necessary to set aside the caveat. The respondent contended that the applicant had failed to stamp a contract, which formed the basis of the caveat, and that the failure to stamp was fatal.

The court held that the applicant had not demonstrated a serious issue to be tried as the respondent's case was not without merit. The court also found that the failure to stamp the contract was not fatal, as the unstamped contract could still be relied upon. However, the court did not consider the failure to stamp to be a decisive factor in determining whether the caveat could be removed. The court held that, on the balance of convenience, the caveat should not be set aside as the respondent's interest in the property was not outweighed by the applicant's need for funds. The court concluded that the caveat could not be removed due to the unstamped contract. The application was dismissed, and costs were reserved.

Orders

Orders of the court

1. The application is dismissed.

2. Costs are reserved.

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:	Mission Development v Rhett [2004] QSC 359
PARTIES:	MISSION DEVELOPMENT GROUP PTY LTD ACN 104 027 867 AS TRUSTEE UNDER INSTRUMENT No 706802317 (applicant) v RHETT PTY LTD ACN 105 466 546 (respondent)
FILE NO/S:	SC No 431 of 2004
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	21 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	30 September 2004
JUDGE:	Mackenzie J
ORDER:	1. The application is dismissed. 2. Costs are reserved.
CATCHWORDS:	CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – CAVEATS AGAINST DEALINGS – LAPSE, REMOVAL AND WITHDRAWAL – REMOVAL – where applicant entered into other contracts – where applicant required funds from property in dispute – whether serious issue to be tried – whether on balance of convenience caveat can be set aside TAXES AND DUTIES – STAMP DUTIES – UNSTAMPED AND IMPROPERLY STAMPED DOCUMENTS – QUEENSLAND – where contract to be stamped formed basis of caveat – where multiplicity of issues to be tried - whether failure to stamp is fatal – whether caveat can be removed because failure to stamp Duties Act (Qld) 2001, s 487 Land Title Act (Qld) 1994, s 127 Stamp Duties Act (Qld) 1894, s 4A Burnitt v Pacific Paradise Resort Pty Ltd [2004] QDC 218; DC No 1721 of 2004, 19 July 2004, followed Caxton Street Agencies Pty Ltd v Korkidas [2002] QSC 210; SC No 1533 of 2002, 28 June 2002, considered Hoggett v O’Rourke [2000] QSC 387; SC No 11510 of 1999, 2 November 2000, considered
COUNSEL:	J Jacobs for the applicant A P J Collins for the respondent
SOLICITORS:	Peter Coumbis for the applicant Quinn & Scattini for the respondent