Mullins v Kelly-Corbett - [2010] QCA 354

SUPREME COURT OF QUEENSLAND

CITATION:

Mullins v Kelly-Corbett [2010] QCA 354

PARTIES:

MICHELLE ALICIA MULLINS
(defendant/appellant)
v
DONNA MARIA KELLY-CORBETT
(plaintiff/respondent)

FILE NO/S:

Appeal No 7569 of 2010
DC No 1208 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

14 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2010

JUDGES:

Muir and Fraser JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal be dismissed with costs

CATCHWORDS:

CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – PERFORMANCE – appellant purchaser and respondent vendor entered into a contract for the sale of a residential property – appellant failed to settle on the date stipulated in the contract – respondent purported to terminate the contract and sold the property to another party – appellant submitted that the respondent had elected to affirm the contract after an earlier anticipatory breach by the appellant – appellant submitted that the affirmation meant the respondent remained under an obligation to be ready, willing and able to perform – appellant submitted that the respondent was not ready, willing and able to give vacant possession on the settlement date – whether the respondent was ready, willing and able to complete the contract on the settlement date – whether the appellant’s conduct relieved the respondent of the obligation to be ready, willing and able to give vacant possession

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT – GENERAL – appellant submitted that a damages clause should be construed with reference to common law principles – whether common law measure of damages applied to claims under the clause – whether losses claimed were too remote to be recoverable

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – primary judge awarded respondent costs on an indemnity basis – whether respondent was entitled to indemnity costs

Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310, applied
Christopher Hill Ltd v Ashington Piggeries Ltd [1969] 3 All ER 1496, cited
Cohen & Co v Ockerby & Co Ltd (1917) 24 CLR 288; [1917] HCA 58, cited
Davidson & Anor v Bucknell & Ors[2009] QCA 383, cited
Foran v Wight (1989) 168 CLR 385; [1989] HCA 51, applied
Hadley v Baxendale (1854) 156 ER 145; [1854] EWHC J70 (Exch), cited
Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26; [1993] HCA 27, cited
Mahoney v Lindsay & Ors (1980) 55 ALJR 118; (1980) 33 ALR 601, applied
Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235; [1954] HCA 25, applied
Rawson v Hobbs (1961) 107 CLR 466; [1961] HCA 72, cited
Sargent v ASL Developments Ltd

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] QCA 354
Decision Date: 14 December 2010

CaseChat Overview and Summary

The case of Mullins v Kelly-Corbett involved the appellant, a purchaser, and the respondent, a vendor, who had entered into a contract for the sale of a residential property. The appellant failed to settle on the stipulated date, prompting the respondent to terminate the contract and sell the property to another party. The appellant contended that the respondent had affirmed the contract after an earlier anticipatory breach by the appellant, thereby remaining obligated to be ready, willing, and able to perform. Specifically, the appellant argued that the respondent was not ready, willing, and able to give vacant possession on the settlement date, as required. The central legal issues were whether the respondent was ready, willing, and able to complete the contract on the settlement date, and if the appellant's conduct relieved the respondent of the obligation to provide vacant possession.

The court considered the doctrine of affirmation of contract and the obligations of both parties upon such affirmation. It found that the respondent's actions did not constitute an affirmation of the contract and that the appellant's anticipatory breach did not relieve the respondent of their duty to be ready, willing, and able to complete the transaction. The court also examined the damages clause, determining that the common law measure of damages should apply to the claims under the clause. The court found that the losses claimed by the appellant were not too remote to be recoverable under the contract's terms.

In terms of costs, the primary judge had awarded the respondent costs on an indemnity basis. The court upheld this decision, concluding that the respondent was entitled to indemnity costs due to the appellant's unsuccessful appeal. The appeal was ultimately dismissed, with the appellant ordered to pay the respondent's costs on an indemnity basis.

Orders

Orders of the court

The appeal be dismissed with 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:	Mullins v Kelly-Corbett [2010] QCA 354
PARTIES:	MICHELLE ALICIA MULLINS (defendant/appellant) v DONNA MARIA KELLY-CORBETT (plaintiff/respondent)
FILE NO/S:	Appeal No 7569 of 2010 DC No 1208 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	14 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	19 November 2010
JUDGES:	Muir and Fraser JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal be dismissed with costs
CATCHWORDS:	CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – PERFORMANCE – appellant purchaser and respondent vendor entered into a contract for the sale of a residential property – appellant failed to settle on the date stipulated in the contract – respondent purported to terminate the contract and sold the property to another party – appellant submitted that the respondent had elected to affirm the contract after an earlier anticipatory breach by the appellant – appellant submitted that the affirmation meant the respondent remained under an obligation to be ready, willing and able to perform – appellant submitted that the respondent was not ready, willing and able to give vacant possession on the settlement date – whether the respondent was ready, willing and able to complete the contract on the settlement date – whether the appellant’s conduct relieved the respondent of the obligation to be ready, willing and able to give vacant possession DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT – GENERAL – appellant submitted that a damages clause should be construed with reference to common law principles – whether common law measure of damages applied to claims under the clause – whether losses claimed were too remote to be recoverable PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – primary judge awarded respondent costs on an indemnity basis – whether respondent was entitled to indemnity costs Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310, applied Christopher Hill Ltd v Ashington Piggeries Ltd [1969] 3 All ER 1496, cited Cohen & Co v Ockerby & Co Ltd (1917) 24 CLR 288; [1917] HCA 58, cited Davidson & Anor v Bucknell & Ors[2009] QCA 383, cited Foran v Wight (1989) 168 CLR 385; [1989] HCA 51, applied Hadley v Baxendale (1854) 156 ER 145; [1854] EWHC J70 (Exch), cited Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26; [1993] HCA 27, cited Mahoney v Lindsay & Ors (1980) 55 ALJR 118; (1980) 33 ALR 601, applied Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235; [1954] HCA 25, applied Rawson v Hobbs (1961) 107 CLR 466; [1961] HCA 72, cited Sargent v ASL Developments Ltd