Osborne v Fruition Property Group Pty Ltd
[2013] QCATA 246
•3 September 2013
| CITATION: | Osborne v Fruition Property Group Pty Ltd [2013] QCATA 246 |
| PARTIES: | Anna-Maree Osborne William Patrick Osborne (Appellants) |
| v | |
| Fruition Property Group Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL256 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 3 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 15 May 2013 is set aside. 4. Fruition Property Group Pty Ltd pay Anna Maree Osborne and William Patrick Osborne $5,337.77 (principal of $5,000 plus interest of $237.77 plus $98 filing fee) by 1 October 2013. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where deed executed for house removal – where house not removed within time – where deed calculated damages payable – where claim for damages dismissed – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549; Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Fruition Property Group Pty Ltd has not engaged in the tribunal proceedings at all. It did not file a response to the minor debt claim. It did not appear at the hearing. It filed nothing in the appeal proceeding. Despite its lack of engagement, Fruition has, so far, avoided liability.
Mr and Mrs Osborne owned an old house at Auchenflower. They wanted to seel a clear block of land, so they offered the house as “free to take away”. They had a demolition approval that expired on 12 September 2012.
In June 2012, Fruition offered to take it away by 12 September. The parties signed a form of REIQ contract. Much of the contract is illegible, sections of it are incomplete and there is no price recorded. However, the contract does have some special conditions, one of which is that “Failure to complete removal and site clean by (12 September 2012) will effect a $5,000 penalty.”
On 8 October 2012, the parties signed a deed in which Fruition agreed to remove the house by 31 January 2013. The deed recorded what would happen if Fruition did not remove the house by that date; Fruition would pay Mr and Mrs Osborne $5,000, the approximate cost of demolishing the house. Fruition did not remove the house. It did not pay Mr and Mrs Osborne $5,000. They filed a claim for that amount in the tribunal. Their claim was dismissed.
Mr and Mrs Osborne want to appeal that decision. They say that the learned Adjudicator erred in finding that the deed was unenforceable because there was no consideration. They also say that, if consideration is necessary, it existed; Mr and Mrs Osborne received a cleared block, at Fruition’s expense and Fruition received a “free house”.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Mr and Mrs Osborne point out that promises made in deeds are enforceable even if there is no consideration.[5] The document was drafted by a lawyer. It sets out the obligations of both parties clearly and both sides have signed it. It should operate as a deed and, therefore, the absence of consideration does not mean it is unenforceable. The learned Adjudicator erred and leave to appeal should be given.
[5]See, for example, 400 George Street (Qld) Pty Limited & Ors v BG International Limited [2010] QCA 245 at [7].
Should Fruition pay the agreed sum of $5,000? The learned Adjudicator found[6] that Mr and Mrs Osborne could only recover that sum of they went to the expense of demolition. Mr and Mrs Osborne have not demolished the house because they have found another party to take the house away.
[6] Transcript page 1-6, lines 6-11.
The deed stated that time was of the essence[7]. Clause 6 sets up Mr and Mrs Osborne’s right to compensation. It says that Fruition will be in breach of the deed if it fails to move the house by 31 January 2013. It says that Mr and Mrs Osborne will suffer damages and will need to arrange for the demolition of the house by that time. It says that the approximate cost of demolition is $5,000. It requires Fruition to pay Mr and Mrs Osborne $5,000 within 2 days of 31 January 2013, in addition to any other remedies.
[7] Clause 8.
I am satisfied that $5,000 is a genuine pre-estimate of the damages Mr and Mrs Osborne were likely to suffer if Fruition did not remove the house on time. Even though the house is still on the block, Mr and Mrs Osborne have suffered loss through Fruition’s breach of the deed. They moved out of the house in August 2012, so they paid rent unnecessarily. They handed over the keys to the house. They went to the trouble of having a deed drawn up. They were delayed in putting their land on the market. The cost of demolition, if they have to do it, has risen. Mr Osborne told the learned Adjudicator that the cost of removing just the asbestos from the house was $5,000[8]. I am satisfied that Fruition breached its obligations under the deed, that Mr and Mrs Osborne suffered loss and that they are entitled to payment of $5,000.
[8] Transcript page 1-6, line 25.
Leave to appeal is granted, the appeal allowed and the decision of 15 May 2013 is set aside. I order Fruition Property Group Pty Ltd pay Mr and Mrs Osborne $5,337.77 (principal of $5,000 plus interest of $237.77 plus $98 filing fee) by (28 days from date of issue).
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