Orchid Avenue Pty Ltd v Parniczky

Orchid Avenue Pty Ltd, a property developer, initiated legal proceedings against the Parniczky Family Trust and Ms Parniczky, seeking damages for breach of contract in the sale of an apartment. The contract was entered into "off the plan," with settlement to occur post-registration of the relevant plan and creation of the separate title. The Parniczky Family Trust and Ms Parniczky, as guarantors, were to cover any loss and costs incurred by Orchid Avenue due to a breach. Despite the plan's registration and settlement due date, the Parniczky Family Trust and Ms Parniczky refused to complete the contract. The defendants filed a defence and counterclaim, alleging misrepresentations and other breaches by Orchid Avenue. The case proceeded to trial in the Supreme Court of Queensland, where the defendants did not appear, prompting Orchid Avenue to seek judgment under r 476 of the Uniform Civil Procedure Rules 1999 (Qld). The court found that the defendants had been notified of the trial date and allowed Orchid Avenue to proceed under r 476, directing that it could establish an entitlement to judgment by affidavit.

The court examined whether Orchid Avenue was entitled to judgment based on the material presented. The defendants' defence admitted certain allegations but also made positive allegations, including that the contract was void due to misrepresentations, that Ms Parniczky was not authorised to contract on behalf of the trust, and that Orchid Avenue failed to mitigate its loss. Additionally, the defendants claimed that the interest rate on unpaid money and expenses under the contract was a penalty. The counterclaim sought declarations and damages under the Competition and Consumer Act 2010 (Cth). Orchid Avenue served Notices to Admit Facts under r 189 UCPR, which the defendants did not respond to, resulting in admissions of the facts set forth in the notices. The court found that the allegations made in the defence were not supported by evidence and were contradicted by the admitted facts, leading to the conclusion that the plaintiff had established an entitlement to judgment.

The court ordered the defendants to pay Orchid Avenue $1,244,490.31 in damages for breach of contract, dismissed the counterclaim, and ordered the defendants to pay Orchid Avenue's costs of the proceeding.