Moor v BHW Projects Pty Ltd
[2004] QSC 60
•25 March 2004
SUPREME COURT OF QUEENSLAND
CITATION:
Moor v BHW Projects Pty Ltd [2004] QSC 060
PARTIES:
DONNA MAREE MOOR
(applicant)
v
BHW PROJECTS PTY LTD ACN 097 405 260 AS TRUSTEE UNDER INSTRUMENT 705923255
(respondent)FILE NO/S:
SC No 9783 of 2003
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
25 March 2004
DELIVERED AT:
Brisbane
HEARING DATE:
12 March 2004
JUDGE:
Mackenzie J
ORDER:
1. The application in so far as it relates to paragraphs 1 to 4 of the originating application filed 31 October 2003 be dismissed.
2. With respect to the application in so far as it relates to paragraphs 5 and 6 therein it is declared as follows:
(a) that upon payment by the applicant of the sum of $24,750 to Gall Stanfield Smith as deposit holder under the contract, the contract became an instalment contract within the meaning of s 72 of the Property Law Act 1974.
(b) that notwithstanding that the applicant has made default as purchaser under the contract as alleged by the respondent the contract is notwithstanding such default, not determined or determinable unless and until the expiration of 30 days after service by the respondent on the applicant of a notice complying with the requirements of s 72 of the Property Law Act 1974.
3. With regard to costs the following orders are made, such orders to take the effect at 4pm on 2 April 2004 unless submissions that different orders should be made are delivered to my Associate and served on the opposing party before that time:
(a) it is ordered that the applicant pay the respondent’s costs of and incidental to the issue of tender of settlement in respect of which the relief in paragraphs 1 to 4 of the originating application was sought;
(b) it is ordered that the respondent pay the applicant’s costs of and incidental to the issue of whether the contract was an instalment contract.
CATCHWORDS:
CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER – BREACH OF CONTRACT – DEPOSIT – RECOVERY OR FORFEITURE – OTHER CASES – where discount given – whether instalment contract existed – whether “deposit” exceeded 10%
CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER – BREACH OF CONTRACT – BREACH BY PURCHASER: REMEDIES OF VENDOR – RESCISSION – WHERE TIME OF ESSENCE – whether settlement occurred by the scheduled time – whether contract was validly terminated
Property Law Act (Qld), 1974 s 71, s 72
Emlen Pty Ltd v Cabbala Pty Ltd [1989] 1 Qd R 620, followed
COUNSEL:
B Clarke for the applicant
A Collins for the respondentSOLICITORS:
Plastiras Meredith Mohr for the applicant
Gall Standfield Smith for the respondent
MACKENZIE J: The basic factual framework in this application is that the applicant entered into a contract to purchase a residential unit in Fortitude Valley. Settlement was nominated by the vendor’s solicitors to take place at their offices at Southport at 4pm on 9 October 2003. According to cl 1.4 of the contract, time was to be of the essence and the contract also provided for settlement between 9am and 5pm at a time and place nominated by those solicitors. It was not in dispute that the 4pm deadline was not met for reasons not attributable to the vendor. However it was not contended that that was fatal, provided settlement occurred by 5pm; in any event, as the evidence showed, an extension until 5pm was granted.
The applicant seeks declarations that tender of settlement was made prior to 5pm, that the purported termination in the fax (transmitted at 5:04pm that day) is void and of no effect, that the purported forfeiture of the deposit is void and of no affect and that the contract remains on foot notwithstanding the purported termination. Alternatively, the applicant seeks declarations that upon payment of $24,750 as deposit, the contract became an instalment contract within the meaning of s 72 of the Property Law Act 1974 and that if there was default as purchaser, the contract was not determined or determinable until 30 days after service of a notice complying with s 72.
Times of phone calls referred to in the reasons are times endorsed on Telstra or Optus accounts. Other times represent recollections of individual witnesses involved in the matter. So far as the times recorded by Telstra are concerned, the following is the situation whatever it may mean. There is a call charging and billing accuracy industry code. The code applies to all call charging and billing accuracy and Telstra conducts four audits each year to verify that its network and billing system comply with the code. The code defines the minimum required level of call charging and billing accuracy and allows the following tolerance levels:
Time and date of call: plus 8.5, minus 5.5 seconds.
Call duration: plus 1.5, minus 2.5 seconds.
The date and time of call and call duration measurements are maintained by atomic clocks and date and time of day is maintained to the Australian National Time Standard held by the National Measurement Laboratory in Sydney. For practical purposes it was agreed that the times shown on the telephone records represented the time at which each relevant call was made, subject to the obvious observation that a call made at, eg, 5:01 could actually occur at any time before that minute had elapsed and perhaps subject to the tolerance allowed for in the standard.
The first relevant phone call occurred at 4:34pm. Ms Conway, a paralegal experienced in conveyancing employed by the solicitors for the applicant in the conveyancing matter, phoned Ms Sears, a solicitor acting for the respondent, to inquire if settlement had occurred. She was told that no-one had attended to complete the settlement. There was no dispute that the documents necessary to effect settlement, except for the cheques, had been forwarded to the vendor’s solicitors who had been requested to hold them as agent for the purchaser’s solicitors for the purpose of settlement. At 4:41pm Ms Conway phoned Ms Sears again, asking whether a one-day extension of time might be granted. She was met with an emphatic refusal.
This led to a flurry of activity on both sides. The solicitors for the applicant, through Ms Courtney, a paralegal, phoned Ms Pritchard, a settlement clerk employed by an associated firm on the Gold Coast and requested her to urgently attend a settlement at the office of the solicitors for the respondent. Ms Pritchard was aware of the 5pm deadline. Ms Sears phoned a partner in her firm at 4:44pm. As a result of that conversation, Ms Sears drafted a fax in anticipation of termination of the contract and the partner phoned, at 4:50pm, Mr Hudson, a director of the respondent, who instructed that there was to be no extension beyond 5pm. At 4:55pm Ms Sears and the partner discussed the fax which had by that time been prepared but not sent.
In the meantime Ms Pritchard had set off with cheques which, it was common ground, were appropriate to effect settlement. At 4:56pm Ms Pritchard was phoned by Ms Courtney to find out where she was. According to Ms Pritchard she was within a short distance of the entrance to the building where the solicitors were situated when she received that call, having parked about 90 metres away and run from her car towards the building. She said that she terminated the call, which lasted for 16 seconds, about the time she pressed the button to summon the lift. The office of the respondent’s solicitors is on the 5th floor of the building and the lift stops only at that floor and the ground floor. According to Ms Pritchard the lift came within about 15 seconds and she ran from the lift to the office. The distance is quite short and it was accepted that it would have taken only a few seconds to cover. Ms Pritchard also gave evidence that she had subsequently ridden in the lift on two occasions and found that it took 16 seconds to travel from the ground floor to the 5th floor. Ms Courtney gave evidence that something had been said by Ms Pritchard about parking the car and something about the lift. She said that Ms Pritchard was also making sounds consistent with her running while the conversation was occurring.
It was not suggested that there was not time for Ms Pritchard to have reached the office of the respondent’s solicitors before 5pm if these versions of the first phone call are accepted. However, the versions given by Ms Pritchard and Ms Courtney were challenged, the thrust being that this phone call had occurred some time before Ms Pritchard was in the vicinity of the building, at the time when she was parking or looking for a place to park her car.
According to Ms Pritchard, she arrived in the office before 5pm but there was no-one at the reception desk. Almost immediately she rang a bell on the reception desk. Shortly afterwards (perhaps 10 to 15 seconds) a man came into reception and inquired of her why she was there. It is not disputed that the man was the office manager of the practice, Mr Saunderson. There is some variation as to precisely what was said, but there is no dispute that the fact that she was there for a settlement was ascertained.
One issue between Mr Saunderson and Ms Pritchard was whether she was on the telephone at the time he came into the reception area with a view to attending to her. Her recollection in the witness box was that the second call from Ms Courtney had been received just as she was finishing her conversation with Mr Saunderson or as he was leaving to find someone who knew of the transaction. The records show that this call was received at 5:01pm and lasted for only 20 seconds. According to Ms Pritchard and Ms Courtney, at this time Ms Pritchard was in the office and, according to Ms Pritchard, the call had been terminated because she had asked for instructions to be obtained by Ms Courtney. This differs from Ms Courtney’s recollection that Ms Pritchard said that no-one had attended to her yet and the call was then terminated. It also possibly varies from Ms Pritchard’s affidavit in which she said that, after the man had attended to her, she received the second call and told Ms Courtney that the man had served her. On behalf of the respondent, questions were put in cross-examination designed to suggest that this was the call that happened when Ms Pritchard was entering the building and ended when she was about to get into the lift. She denied this and maintained that the call was received by her in the reception area.
This issue was further complicated by a response by Ms Pritchard in cross-examination that she may have received a phone call from her boyfriend at about that time. It emerged in re-examination that that day, she and her boyfriend had settled the purchase of their own dwelling and it was her recollection that he had called her once at least during her involvement in the events with which we are concerned. This issue, as it appeared to me, arose only in the context of cross-examination challenging Ms Pritchard’s version. There is no telephone record supporting a call from her partner and, effectively, a challenge was issued by counsel for the respondent for such records to be produced if they existed. However given the brief compass of the trial and the fact that any records to support it were either the Gold Coast, if they had been retained by her partner, or alternatively, if obtained from Telstra, in my view the absence of such a record at the close of evidence was not of the same significance as it might otherwise be.
In a phone conversation commencing at 5:01pm, Mr Hudson gave instructions to Ms Sears to terminate the contract. The conversation was of 2 minutes 30 seconds duration. The fax effecting those instructions was transmitted at 5:04pm, taking 18 seconds to transmit. The applicant’s solicitors’ records also show that it was received at 5:04pm. According to Ms Sears, after the phone call from Mr Hudson, she went to the office printer to collect the draft fax she had prepared earlier, read it over, placed it in the fax machine and sent it. The recorded times for Mr Hudson’s phone call and the transmission of the fax are consistent with Mr Sears’ evidence that Ms Pritchard must have arrived after 5pm.
One thing that is certain is that Ms Pritchard was in the office of the solicitors before the fax was transmitted, but it was not submitted that that, in itself, was of any significance. On any view of it, the third phone call from Ms Courtney was made at 5:03pm and was therefore under way before the fax was sent. According to Mr Saunderson, upon hearing the bell ring he went to the reception area. It is common ground that there was not a lengthy delay between the bell being rung and Mr Saunderson coming to speak to Ms Pritchard. According to Ms Sears, she had just sent the fax when Mr Saunderson approached her at the fax machine and told her that there was someone in the reception area in connection with the settlement.
Mr Saunderson said that when he heard the bell ring, he went to reception where he saw Ms Pritchard engaged in a mobile phone call. He said she was apparently doing more listening than speaking and her attention seemed directed towards the phone call rather than to him. He was not sure whether the call had actually been terminated or not. When they eventually spoke, after what Mr Saunderson estimated as about 10 to 15 seconds, he ascertained where she was from, what she was there for and possibly her name. He was told that she was there for the settlement, but the name of the matter meant nothing to him since he was concerned only with the management of the office staff, not the professional staff.
After that he said he would find out who was handling the matter and walked back into the area behind reception. He agreed that he said something to the effect “Does anybody know anything about a settlement for Moor and BHW?”. He saw Ms Sears near the fax photocopier and told her about the person in reception because he believed she was the only conveyancing person that he knew may be handling it. Mr Saunderson said that Ms Sears said words to the effect that the person was too late. (Ms Sears’ recollection was that she did not say anything of that kind to him).
Mr Saunderson frankly conceded that it “could be so” that he would not be surprised if a client came in one or two minutes before 5pm and found the reception desk unattended. He agreed with the proposition that computers were often closed down at about 4:50pm. He also accepted that his evidence that he went to reception at “shortly after 5pm” was a calculation based on estimates of how long things must have taken. He accepted that if those estimates were inaccurate, the time could have been before 5pm when Ms Pritchard arrived, although he did not think that it was correct. He also pointed out that it was shortly after the event when he formed his conclusion as to the time when he saw Ms Pritchard. He said that after he had seen Ms Sears go out to the reception area to attend to Ms Pritchard, he went back to his office to tidy up, which included doing work on his computer. He said that Ms Sears had come to see him within about 2 minutes and had asked him to verify the time. He did not accept that he may have lost track of time and was therefore inaccurate in that estimate, because he said he was vaguely aware that the matter may become contentious. He said that both the computer clock and his watch showed 5:07pm. His watch was only marginally fast, according to a check with the 1194 service.
What transpired after Ms Sears spoke to Ms Pritchard was that there was a conversation between Ms Sears and Mr Goosem, the Brisbane solicitor dealing with the applicant’s transaction. It is agreed that this conversation occurred during the course of the third call which lasted 6 minutes and 6 seconds from 5:03pm. According to Ms Courtney, she had initiated the call to Ms Pritchard and asked her what was happening. Ms Pritchard said “We’ve been told we’re out of luck. The contact is terminated”. Ms Courtney told her to hold the line while she got Mr Goosem (whose office was immediately adjacent to Ms Courtney’s). When he was told the news he dialled 1194 and the automatic voice said that it was 5:03.50. It was challenged in cross-examination that he had been told, in the first minute of the call, that the contract had been terminated. It was suggested that at that time it had been established that Ms Pritchard had then arrived at the premises of the solicitors and that the call to 1194 had been made to establish authoritatively what the time then was. It was only in a phase of the conversation when he was engaged in discussion with Ms Sears that he learnt that the contract had been terminated. He agreed that he said that he had been in contact with Ms Pritchard for over 5 minutes but said that this was based on a belief that there had been more than one conversation. He did not recall, but did not exclude the possibility, that Ms Sears had said, by that time which Ms Sears asserted was 5:09pm, that even if he had been on the phone to Ms Pritchard for more than 5 minutes it meant that she was not there until 5:04pm. He said that he did not recall 5:09 being mentioned but did recall 5:07 being mentioned. He agreed that at some point Ms Sears had interrupted the phone call apparently to go somewhere.
Ms Courtney said that when she rang Ms Pritchard at 5:01pm, Ms Pritchard told her “No-one is here. I am just waiting.”. Ms Courtney said she would call back or Ms Pritchard could call her. There is no evidence suggesting that Ms Courtney reported to anyone that Ms Pritchard had arrived. Ms Courtney then called again at 5:03pm and was told by Ms Pritchard that she had been told that they were out of luck and that the contract had been terminated. Ms Courtney told her to hold the line and she would get Mr Goosem. She put Ms Pritchard on hold and went immediately to Mr Goosem’s office next door, which would have taken a very short time. Mr Goosem then phoned 1194 and she recalled that the time was 5:03 and a number of seconds that she could not recall. She rejected the version put to her that it was only after the call to 1194 that they were told that the contract had been terminated.
There was also evidence from Ms Browne, the receptionist whose work station was in the reception area. She said that on the day in question she had closed her computer about 4:55pm and tidied up. She said that she had remained until shortly after 5pm because there were incoming calls and left a few minutes after 5pm. She went down in the lift in which Ms Pritchard would have travelled up to the office. She had not seen anybody in reception when she left. She was not aware of the delayed settlement and had not been told that somebody might be coming in late. She could not recall particularly whether Ms Sears had got calls that afternoon. She said that she had left on her own. Ms Pritchard deposed that at the time she entered the lift two blonde girls in their early 20’s got out of the lift at the ground floor. Ms Browne is blonde but the evidence is insufficient to make a correlation between either of the people who got out of the lift and her. There is only one lift giving access to the fifth floor from the point where Ms Pritchard entered the building.
Two other employees, Ms Carr-Hill and Ms Smith, gave evidence as well. Ms Carr-Hill was a solicitor whose office was adjacent to Ms Sears’. She had no direct view into the reception area from her room but could see the clock in reception from outside her room by looking down the corridor. She was in the habit of driving Ms Smith home. She shut her computer down at about 4:50pm but did not go into reception after that time. She said that just before 5pm she had collected her personal effects to go home. She saw Ms Sears on the phone when she was leaving and said that she had seen the reception clock showing 5:02pm at the time. She left through a back door which ultimately took her to the car park. She had been aware of the delayed settlement because she had an interest in transactions involved in selling the particular project.
Ms Smith was not aware of the delayed settlement and had no involvement with it. She said that she was not paying any special attention to time that afternoon but next day, on being asked to recall when she left remembered looking at the reception area clock and seeing it was 5:02. She left through the back door, not through reception, with Ms Carr-Hill. I did not find the evidence of either of these witnesses about time particularly compelling because of the element of reconstruction after the event involved in forming their recollections.
The basic cases of the applicant and the respondent are irreconcilable. The issue of credibility therefore becomes critical. It must be said that subject to the comment in the previous paragraph, the witnesses on each side maintained their case firmly but without obvious partisanship. There were no obvious indicia in the presentation by the various witnesses that betrayed a manufactured version. The only practical approach in the circumstances is to look at the objective evidence with a view to deciding whether the applicant has established the version of the evidence for which she contends.
In the course of her cross-examination Ms Pritchard accepted estimates for various segments of her progress towards the respondent’s solicitors’ office as reasonable. They are mostly only estimates but in the particular circumstances then prevailing, they are not unreasonable. The time of travel of the lift was established experimentally by her. Matching of these steps with known times is instructive.
The starting point is the 16 second phone call made at 4:56pm. For the purpose of this exercise I will make the most generous allowance by assuming that it started just before the end of the minute starting at 4:56pm and that most of the conversation happened when it was actually 4:57pm. The benchmark will therefore be 4.57.15. The times marked with an asterisk are slightly longer than the times accepted by Ms Pritchard. The calculation also assumes that the time during which she waited for Mr Saunderson to come out to attend to her and, if there was another phone call, that phone call, are independent blocks of time rather than part of the time spent waiting for Mr Saunderson while being occupied by the phone call. The times adopted for the purpose of the exercise are the following, from the time when the lift button was pressed in the ground floor foyer:
Waiting for lift to arrive 20 seconds*
Entering lift 5 seconds
Travelling to 5th floor 20 seconds*
Exiting lift 5 seconds
Running to solicitors office 10 seconds*
Ringing bell in reception 5 seconds*
Waiting for Mr Saunderson 20 seconds
Taking another phone call 15 seconds
Conversation with
Mr Saunderson 60 seconds
Total 2 minutes 40 seconds
That calculation would result in Mr Saunderson walking away to find the person responsible for the file at 4:59:55. It is apparent from the evidence of Ms Pritchard that the period that elapsed after Mr Saunderson went inside to the appearance of Ms Sears in reception from a different angle was quite brief. This is difficult to reconcile with Mr Saunderson going to seek a person after the 5:01 phone call because, at the earliest, according to the phone records, Ms Sears would have been engaged in her phone conversation with Mr Hudson until 5:03:30 and potentially up to a minute later depending how far into the minute commencing at 5:01 the call was received by her. If the evidence of Mr Goosem that he phoned 1194 in time to hear 5.03.50 announced is accepted, the call at 5.01 to Ms Sears must have occurred close to the beginning of that minute, although time for ms Courtney’s conversation with Ms Pritchard, her going to speak to Mr Goosem, her telling him what had happened and him making the call to 1194. Her appearance shortly after Mr Saunderson had conversed with Ms Pritchard and had gone looking for the person responsible for the file is more consistent with Ms Pritchard’s arrival after 5pm than before 5pm. There is also a difficulty in reconciling the inventory of elapsed time with the evidence of Ms Courtney who said that in the 5:01 call, Ms Pritchard had said that she was in the reception area but no-one had yet attended to her.
Those matters are sufficient to persuade me that the applicant has not made out the case contended for by her that Ms Pritchard was at the solicitors’ office before 5pm. It may also be noted that there was belated and, for present purposes, incomplete evidence that phone calls into the practice came through the phone on Ms Browne’s desk. She said that she turned up the phone loudly when she left for the day so that people remaining after she left could hear that it was ringing. In the absence of more precise evidence than this about how the system works, I am reluctant to make any inference from it. It is noted, however, that the evidence is silent as to any phone ringing in the reception area while Ms Pritchard was waiting to be attended to, and the applicant’s case is inconsistent with someone having come into reception and dealt with any such call.
Because of that conclusion, it is necessary to consider the second limb of the applicant’s case that the contract was an instalment contract within the meaning of s 71 of the Property Law Act 1974 with the consequence that the applicant had the benefit of s 72 in relation to the purported termination. An “instalment contract” is defined as follows:
“ ‘instalment contract’ means an executory contract for the sale of land in terms of which the purchaser is bound to make a payment or payments (other than a deposit) without becoming entitled to receive a conveyance in exchange for the payment or payments.”
“Deposit” is defined as a sum:
(a)not exceeding 10% of the purchase price payable under an instalment contract; and
(b)paid or payable in one or more amounts; and
(c)liable to be forfeited and retained by the vendor in the event of a breach of contract by the purchaser.
The contract in respect of which settlement was attempted on 9 October 2003 had its genesis in an expression of interest executed late in 2001 and put and call options executed in respect of Lots 122 and 114 in March 2002 by the applicant and her husband. In April 2002 it was apparent that finance for the option fee for Lot 114 could not be obtained by Mr and Mrs Moor. There was a draft contract annexed to the put and call option documents and eventually the applicant alone executed it as nominee of herself and her husband.
Both the applicant and the respondent took the primary position that it was the effect of the contract that governed the issue now under consideration although each put secondary arguments reaching the same conclusion as that contended for by them based on the effect of the antecedent transactions. The contract nominates a purchase price of $247,500 including GST. The deposit is nominated as $24,750. It is common ground also that stamp duty was paid on $247,500. I do not consider that to be a critical issue since there is nothing to suggest that any case was put to the Office of State Revenue that the stamping should be at any other figure. The complicating factor which is said to be decisive in her favour by the applicant is that there was a special condition in the following terms:
“Immediately upon payment of the deposit under this contract the buyer will receive a discount of $10,000 from the purchase price payable at settlement.”
Because the contract with regard to unit 114 was unable to proceed it was agreed on or about 15 September 2003 that the discount should be only $5,000. However, it is common ground that that alteration makes no material change to the principle of the applicant’s argument since whether the discount was to be $5,000 or $10,000 the deposit of $24,750 was greater than 10% of what the applicant claimed was the purchase price for the purposes of the application of ss 71 and 72 of the Property Law Act.
It appears to be settled law that if a deposit required in the case of an executory contract is greater than 10% and the purchaser does not have an entitlement to receive a conveyance in exchange for the payment, the contract is caught by the definition of “instalment contract” in s 71 (Emlen Pty Ltd v Cabbala Pty Ltd [1989] 1 Qd R 620, where Ryan J cited earlier authority where the principle was discussed if not authoritatively decided). The issue in this case is one of construction of the contract in light of that principle.
There are two provisions under the hearing “special conditions” in the contract particulars annexed to the contract. There are idiosyncratic elements which have created the problem, if it proves to be the case that the applicant’s argument is correct.
The first provision, which is crossed out, is as follows:
“If contracts become unconditional by 15th March 2002 the purchaser will receive a discount of $10,000 from the purchase price at settlement”.
The date referred to in that provision is close to the date when the put and call option was executed and some months after the expression of interest. The operative provision in the contract is quoted above in para [29].
The phrase “discount …. from the purchase price payable at settlement” is possibly ambiguous but seems to be intended to convey the notion that on settlement, because the agreed sum of $5,000 has been deducted from the purchase price immediately upon payment of the deposit, the sum payable at settlement is less, by that sum, from that originally agreed. It is somewhat different in its structure from the original special condition which made the discount contingent upon payment by a particular date. In the operative provision the only event upon which the reduction depends is payment of the deposit. There is no choice to be exercised by the purchaser as to whether or not she takes advantage of the possibility of the discount. The obligation under the contract to pay the deposit, once discharged, is the triggering event.
Under cl 2.1 of the contract the buyer was obliged to pay the deposit at the time shown in the contract particulars. The contract particulars showed $24,750 was to be paid within 7 days of the contact date. Clause 2.7 allowed the seller, at its discretion, to accept as payment of the deposit, instead of a cash deposit, a security in favour of the seller to which it would have recourse without reference to the buyer if the buyer defaulted or failed to pay the full amount at settlement. It was common ground that the obligation to pay the deposit had been discharged by providing a deposit bond.
The case is not one where the problem of whether a variation of the contract has the consequence that there is an instalment contract. It is a case where the issue is construction of the contract as entered into. As a matter of construction of the contract, provided the purchaser carries out the obligation to which she is bound under it to pay the deposit, the price she will have to pay at the time of settlement will be $242,500, not the “purchase price” of $247,500. The obligation to pay $24,750 deposit is a contractual term. There is an executory contract for the sale of land in terms of which the purchaser is bound to make payment which exceeds the criteria of “deposit” as defined by the Act without being entitled to receive a conveyance in exchange for payment. There is therefore an instalment contract. It is unnecessary to consider the applicant’s other argument in the circumstances, since it is designed only to reach the same conclusion by a indirect route.
It follows that the declarations sought in paragraphs 1 to 4 of the originating application must be dismissed and declarations consistent with 5 and 6 granted. As to costs, there were two distinct issues to be decided. The plaintiff has succeeded on one but not the other. It is one of those rare cases where the issues are quite discrete and do not overlap in any respects. One depends on questions of fact and the other depends on a question of construction of uncontroversial documents and facts. In the circumstances an order that the unsuccessful party on the respective issues pay the successful party’s seems appropriate. However, I will allow submissions to the contrary to be made within 7 days. The orders are as follows:
1.The application in so far as it relates to paragraphs 1 to 4 of the originating application filed 31 October 2003 be dismissed.
2.With respect to the application in so far as it relates to paragraphs 5 and 6 therein it is declared as follows:
(a)that upon payment by the applicant of the sum of $24,750 to Gall Stanfield Smith as deposit holder under the contract, the contract became an instalment contract within the meaning of s 72 of the Property Law Act 1974.
(b)that notwithstanding that the applicant has made default as purchaser under the contract as alleged by the respondent the contract is notwithstanding such default, not determined or determinable unless and until the expiration of 30 days after service by the respondent on the applicant of a notice complying with the requirements of s 72 of the Property Law Act 1974.
3.With regard to costs the following orders are made, such orders to take the effect at 4pm on 2 April 2004 unless submissions that different orders should be made are delivered to my Associate and served on the opposing party before that time:
(a)it is ordered that the applicant pay the respondent’s costs of and incidental to the issue of tender of settlement in respect of which the relief in paragraphs 1 to 4 of the originating application was sought;
(b)it is ordered that the respondent pay the applicant’s costs of and incidental to the issue of whether the contract was an instalment contract.
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