Orchid Avenue Pty Ltd v Goode - [2014] QDC 217

DISTRICT COURT OF QUEENSLAND

CITATION:

Orchid Avenue Pty Ltd v Goode [2014] QDC 217

PARTIES:

ORCHID AVENUE PTY LTD

(plaintiff)

v

PAUL KEVIN GOODE and CHRISTINE MARIANNE BARBER

(defendants)

FILE NO/S:

D285/2012

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

19 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

6, 7 August 2014

JUDGE:

McGill DCJ

ORDER:

Plaintiff’s claim dismissed. On the counterclaim, declare the contracts between the parties dated 20 August 2009 void ab initio and order the plaintiff to authorise the stakeholder to release the deposits and any accretions to the defendants.

CATCHWORDS:

VENDOR AND PURCHASER – Purchaser’s claim for rescission – representations – whether made – whether misleading or deceptive conduct – whether agent had authority – whether relied on – effect of contractual exclusions – relief.

VENDOR AND PURCHASER – Vendor’s claim for damages – expenses of resale – estate agent paid excessive commission – payment illegal – not recoverable – interest on purchase price not recoverable under contract after termination.

TRADE PRACTICES – Misleading and deceptive conduct – representations as to future matters – whether made – whether agent had authority – whether relied on – relief.

PRINCIPAL AND AGENT – Principal and third party – sale of land by principal – principal liable for representations of estate agent – actual authority – ostensible authority – liability not excluded by terms of contract of sale.

Butcher v Lachlan Elder Realty (2004) 218 CLR 592 – considered.
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 – applied.
Downeyv Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 – applied.
F A Pidgeon & Son Pty Ltd v Daneshurst Investments Pty Ltd [1986] 1 Qd R 448 cited.
Federal Commissioner of Taxation v Park (2012) 205 FCR 1 – cited.
Foran v Wright (1989) 168 CLR 385 – cited.
Gould v Vaggelas (1984) 157 CLR 215 cited.
Hooper v Oates [2014] 2 WLR 743 – cited.
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 cited.
Lewis v Orchid Avenue Pty Ltd [2014] FCA 739 – not followed.
Mark Bain Constructions Pty Ltd v Avis [2012] QCA 100 – applied.
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 – cited.
Mullens v Miller (1882) 22 Ch D 194 – cited.
Neville v Lam (No3) [2014] NSWSC 607 – cited.
Overbrooke Estates Ltd v Glencombe Properties Ltd [1974] 1 WLR 1335 – distinguished.
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 – cited.
R v Ashley [2005] QCA 293 – cited.
Rutherford v Brados Pty Ltd (1995) 16 Qld Lawyer Reps 61 – followed.
Thompson v Riggall [2010] QCA 144 – applied.
Warwick Entertainment Centre Pty Ltd v Alpine Holdings Pty Ltd [2005] WASCA 174 – applied.
Watson v Foxman (1985) 49 NSWLR 315 – distinguished.

COUNSEL:

G Handran for the plaintiff

A J Greinke for the defendants

SOLICITORS:

Hickey Lawyers for the plaintiff

K2 Law, solicitors for the defendants

By a contract in…

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: [2014] QDC 217
Decision Date: 19 September 2014

CaseChat Overview and Summary

Orchid Avenue Pty Ltd, a purchaser, brought a claim against Goode, the vendor, for rescission of a property sale, alleging misleading and deceptive conduct, improper representations, and issues regarding the authority of the agent. Goode, in turn, sought damages for expenses incurred from a resale of the property, arguing that certain payments made were illegal and not recoverable. The dispute was heard in the relevant Australian court.

The legal issues before the court were whether any representations had been made that were misleading or deceptive, whether the estate agent had the authority to make such representations, and whether the purchaser relied on them. Additionally, the court had to determine the effect of any contractual exclusions on the claims. The central issue was whether the vendor could be held liable for the representations made by the estate agent, despite contractual terms that seemed to exclude such liability.

The court found that the estate agent had made representations that were misleading or deceptive, and that these representations were within the scope of the agent’s authority, either actual or ostensible. The purchaser had indeed relied on these representations. Despite the contractual exclusions, the court ruled that the vendor was liable for the agent's representations. The court further held that certain expenses and interest payments were not recoverable due to their illegal nature or because they fell outside the contractual terms.

The court dismissed the purchaser's claim for rescission and ordered that the contracts between the parties be declared void from the outset. The court also ordered that the deposits held by the stakeholder be released to the defendants, Orchid Avenue Pty Ltd.

Orders

Orders of the court

Plaintiff’s claim dismissed. On the counterclaim, declare the contracts between the parties dated 20 August 2009 void ab initio and order the plaintiff to authorise the stakeholder to release the deposits and any accretions to the defendants.

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:	Orchid Avenue Pty Ltd v Goode [2014] QDC 217
PARTIES:	ORCHID AVENUE PTY LTD (plaintiff) v PAUL KEVIN GOODE and CHRISTINE MARIANNE BARBER (defendants)
FILE NO/S:	D285/2012
DIVISION:
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	19 September 2014
DELIVERED AT:	Brisbane
HEARING DATE:	6, 7 August 2014
JUDGE:	McGill DCJ
ORDER:	Plaintiff’s claim dismissed. On the counterclaim, declare the contracts between the parties dated 20 August 2009 void ab initio and order the plaintiff to authorise the stakeholder to release the deposits and any accretions to the defendants.
CATCHWORDS:	VENDOR AND PURCHASER – Purchaser’s claim for rescission – representations – whether made – whether misleading or deceptive conduct – whether agent had authority – whether relied on – effect of contractual exclusions – relief. VENDOR AND PURCHASER – Vendor’s claim for damages – expenses of resale – estate agent paid excessive commission – payment illegal – not recoverable – interest on purchase price not recoverable under contract after termination. TRADE PRACTICES – Misleading and deceptive conduct – representations as to future matters – whether made – whether agent had authority – whether relied on – relief. PRINCIPAL AND AGENT – Principal and third party – sale of land by principal – principal liable for representations of estate agent – actual authority – ostensible authority – liability not excluded by terms of contract of sale. Butcher v Lachlan Elder Realty (2004) 218 CLR 592 – considered. Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 – applied. Downeyv Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 – applied. F A Pidgeon & Son Pty Ltd v Daneshurst Investments Pty Ltd [1986] 1 Qd R 448 cited. Federal Commissioner of Taxation v Park (2012) 205 FCR 1 – cited. Foran v Wright (1989) 168 CLR 385 – cited. Gould v Vaggelas (1984) 157 CLR 215 cited. Hooper v Oates [2014] 2 WLR 743 – cited. I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 cited. Lewis v Orchid Avenue Pty Ltd [2014] FCA 739 – not followed. Mark Bain Constructions Pty Ltd v Avis [2012] QCA 100 – applied. McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 – cited. Mullens v Miller (1882) 22 Ch D 194 – cited. Neville v Lam (No3) [2014] NSWSC 607 – cited. Overbrooke Estates Ltd v Glencombe Properties Ltd [1974] 1 WLR 1335 – distinguished. Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 – cited. R v Ashley [2005] QCA 293 – cited. Rutherford v Brados Pty Ltd (1995) 16 Qld Lawyer Reps 61 – followed. Thompson v Riggall [2010] QCA 144 – applied. Warwick Entertainment Centre Pty Ltd v Alpine Holdings Pty Ltd [2005] WASCA 174 – applied. Watson v Foxman (1985) 49 NSWLR 315 – distinguished.
COUNSEL:	G Handran for the plaintiff A J Greinke for the defendants
SOLICITORS:	Hickey Lawyers for the plaintiff K2 Law, solicitors for the defendants