Moor v BHW Projects Pty Ltd

The case of Moor v BHW Projects Pty Ltd involved the plaintiff, Moor, and the defendant, BHW Projects Pty Ltd. The dispute centred on a contract for the sale of property where Moor had paid a deposit to BHW Projects. The nature of the disagreement was whether the deposit, along with a discount, constituted an instalment contract under the Property Law Act 1974, and if so, what the implications were for the enforceability of the contract should Moor default on the payment. The matter was heard by the Queensland District Court.

The court was tasked with determining whether the contract was an instalment contract as defined in section 72 of the Property Law Act 1974, given the payment of the deposit and the discount applied. If it was an instalment contract, the court also had to consider whether the purchaser's failure to pay constituted a breach that could result in the forfeiture of the deposit. Additionally, the court needed to decide whether the time of settlement was of the essence in the contract and if the vendor had the right to terminate the contract upon the purchaser's default.

In its reasoning, the court first addressed the nature of the contract and whether the deposit, once the discount was considered, exceeded the threshold of 10% stipulated in the Act. The court found that once the discount was applied, the deposit did indeed exceed 10%, thus classifying the contract as an instalment contract. The court then examined the requirement for a notice under section 72 of the Act before the vendor could terminate the contract. It was held that such a notice was necessary before any termination could occur. Furthermore, the court determined that the time of settlement was not of the essence, meaning that the vendor could not unilaterally terminate the contract for the purchaser's failure to settle on time.

The final orders of the court were that the application relating to the initial relief sought was dismissed, while the court declared that the contract became an instalment contract upon the payment of the specified deposit. It was also declared that the contract could not be terminated by the vendor unless and until the respondent served a notice in compliance with section 72 of the Act. The court further ordered that the plaintiff pay the defendant's costs related to the tender of settlement and that the defendant pay the plaintiff's costs regarding the determination of whether the contract was an instalment contract.