MSD Securities Pty Ltd v MFB Properties (NQ) Pty Ltd - [2016] QSC 261

SUPREME COURT OF QUEENSLAND

CITATION:

MSD Securities Pty Ltd & Ors v MFB Properties (NQ) Pty Ltd & Ors [2016] QSC 261

PARTIES:

MSD SECURITIES PTY LTD AS TRUSTEE FOR THE BRUNSWICK STREET TRUST
ACN 160 362 345

(first plaintiff)
PK’S RESORT PTY LTD
ACN 168 348 730
(second plaintiff)
MARK LEONARD SEABROOK
(third plaintiff)
DAVID BRUCESMITH
(fourth plaintiff)

v
MFB PROPERTIES (NQ) PTY LTD
ACN 101 980 303

(first defendant)
THE JUNGLE VILLAGE PTY LTD
ACN 098 067 077
(second defendant)
ASHLEE JANE PIPER
(third defendant)
MARK FREDERICK DAVID BIANCOTTI
(fourth defendant)

FILE NO:

BS No 2575 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 November 2016

DELIVERED AT:

Brisbane

HEARING DATES:

17 and 18 October 2016; Plaintiffs’ Written Submissions received 25 October 2016.

JUDGE:

Flanagan J

ORDER:

1. The plaintiffs’ claim for a declaration that the balance consideration to be paid by the plaintiffs to the defendants pursuant to the transaction deed dated 13 March 2014 is $1,616,655.05 is dismissed.

2. I will hear the parties as to further orders, directions and costs.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTIONS FOR BREACH – PARTICULAR PARTIES – VENDOR AND PURCHASER – where first and second plaintiffs agreed to purchase parcels of land and a resort business from first, second and third defendants – where the terms of the sale and purchase were set out in a transaction deed and various sale and purchase contracts – where two lots of land to be transferred pursuant to the transaction deed and the relevant sale and purchase contracts were subject to leases – where the leases were amended prior to settlement – where plaintiffs not party to the leases prior to settlement – whether amendments to the leases amounted to a breach of the relevant sale and purchase contracts – whether the damages flowing from any breaches of contract are the difference in the rental figures under the leases prior to amendment and the rental figures after amendment

EQUITY – EQUITABLE REMEDIES – SPECIFIC PERFORMANCE – DECREE OR JUDGMENT – where all parties seek an order that the transaction deed and associated sale and purchase contracts be specifically performed – whether the plaintiffs are entitled to set-off the amount claimed as damages for the alleged breach of contract against the balance consideration owing under the transaction deed

Clark v Macourt (2013) 253 CLR 1; [2003] HCA 56, applied
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54, cited
Davis v Perry O’Brien Engineering Pty Ltd [2016] QSC 202, considered
Drane v Aqualung Holdings [2016] QSC 139, considered
Forsyth v Gibbs (2009) 1 Qd R 403; [2008] QCA 103, cited
HP Mercantile Pty Ltd v Dierickx (2013) 306 ALR 53, cited

UI International Pty Ltd v Interworks Architects Pty Ltd (2008) 2 Qd R 158; [2007] QCA 402, considered

COUNSEL:

DV Ferraro for the plaintiffs

MA…

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: [2016] QSC 261
Decision Date: 15 November 2016

CaseChat Overview and Summary

MSD Securities Pty Ltd and another plaintiff (collectively referred to as "plaintiffs") sought to enforce a transaction deed and associated sale and purchase contracts against MFB Properties (NQ) Pty Ltd and others (collectively referred to as "defendants"). The plaintiffs had agreed to purchase parcels of land and a resort business from the defendants, with the terms set out in the transaction deed and sale and purchase contracts. The dispute centred on whether the amendments made to leases on two lots of land prior to settlement constituted a breach of the sale and purchase contracts, and if so, whether the damages were correctly calculated as the difference in rental figures before and after the amendments.

The court had to decide whether the amendments to the leases constituted a breach of the sale and purchase contracts, and if so, whether the damages were correctly calculated. The plaintiffs argued that the amendments amounted to a breach and that the damages should be the difference in rental figures. The defendants contended that there was no breach and that the plaintiffs' calculation of damages was incorrect. The court examined the transaction deed, sale and purchase contracts, and the nature of the leases and their amendments to determine if there was a breach and to calculate the appropriate damages.

In determining the matter, the court found that the amendments to the leases did not constitute a breach of the sale and purchase contracts. Consequently, the plaintiffs' claim for a declaration that the balance consideration to be paid by them to the defendants pursuant to the transaction deed was dismissed. The court also noted that it would hear the parties regarding further orders, directions, and costs.

The court did not grant the plaintiffs' request for a declaration on the balance consideration, effectively dismissing that part of their claim. Further proceedings will be required to determine the appropriate orders, directions, and costs.

Orders

Orders of the court

1. The plaintiffs’ claim for a declaration that the balance consideration to be paid by the plaintiffs to the defendants pursuant to the transaction deed dated 13 March 2014 is $1,616,655.05 is dismissed.

2. I will hear the parties as to further orders, directions and costs.

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:	MSD Securities Pty Ltd & Ors v MFB Properties (NQ) Pty Ltd & Ors [2016] QSC 261
PARTIES:	MSD SECURITIES PTY LTD AS TRUSTEE FOR THE BRUNSWICK STREET TRUST ACN 160 362 345 (first plaintiff) PK’S RESORT PTY LTD ACN 168 348 730 (second plaintiff) MARK LEONARD SEABROOK (third plaintiff) DAVID BRUCESMITH (fourth plaintiff) v MFB PROPERTIES (NQ) PTY LTD ACN 101 980 303 (first defendant) THE JUNGLE VILLAGE PTY LTD ACN 098 067 077 (second defendant) ASHLEE JANE PIPER (third defendant) MARK FREDERICK DAVID BIANCOTTI (fourth defendant)
FILE NO:	BS No 2575 of 2016
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	15 November 2016
DELIVERED AT:	Brisbane
HEARING DATES:	17 and 18 October 2016; Plaintiffs’ Written Submissions received 25 October 2016.
JUDGE:	Flanagan J
ORDER:	1. The plaintiffs’ claim for a declaration that the balance consideration to be paid by the plaintiffs to the defendants pursuant to the transaction deed dated 13 March 2014 is $1,616,655.05 is dismissed. 2. I will hear the parties as to further orders, directions and costs.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTIONS FOR BREACH – PARTICULAR PARTIES – VENDOR AND PURCHASER – where first and second plaintiffs agreed to purchase parcels of land and a resort business from first, second and third defendants – where the terms of the sale and purchase were set out in a transaction deed and various sale and purchase contracts – where two lots of land to be transferred pursuant to the transaction deed and the relevant sale and purchase contracts were subject to leases – where the leases were amended prior to settlement – where plaintiffs not party to the leases prior to settlement – whether amendments to the leases amounted to a breach of the relevant sale and purchase contracts – whether the damages flowing from any breaches of contract are the difference in the rental figures under the leases prior to amendment and the rental figures after amendment EQUITY – EQUITABLE REMEDIES – SPECIFIC PERFORMANCE – DECREE OR JUDGMENT – where all parties seek an order that the transaction deed and associated sale and purchase contracts be specifically performed – whether the plaintiffs are entitled to set-off the amount claimed as damages for the alleged breach of contract against the balance consideration owing under the transaction deed Clark v Macourt (2013) 253 CLR 1; [2003] HCA 56, applied Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54, cited Davis v Perry O’Brien Engineering Pty Ltd [2016] QSC 202, considered Drane v Aqualung Holdings [2016] QSC 139, considered Forsyth v Gibbs (2009) 1 Qd R 403; [2008] QCA 103, cited HP Mercantile Pty Ltd v Dierickx (2013) 306 ALR 53, cited UI International Pty Ltd v Interworks Architects Pty Ltd (2008) 2 Qd R 158; [2007] QCA 402, considered
COUNSEL:	DV Ferraro for the plaintiffs MA…