Payne v Payne - [2002] QSC 111

SUPREME COURT OF QUEENSLAND

CITATION:

Payne v Payne [2002] QSC 111

PARTIES:

CHRISTOPHER WILLIAM PAYNE
(applicant)
v
GEORGE EDWARD PAYNE
(respondent)

FILE NO/S:

6241 of 2001

DIVISION:

Trial Division

DELIVERED ON:

26 April 2002

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2002

JUDGE:

Mackenzie J

ORDER:

1.        I declare that George Edward Payne is at liberty to purchase Lot 42 Crown Plan WD 484, County of Ward, Parish of Pimpama, Title Reference 16746132 and Lot 55, Crown Plan WD 484, County of Ward, Parish of Pimpama, Title Reference 16746134 in accordance with para 4 of the order of White J dated 23 July 2001.

2.        I order that if George Edward Payne confirms in writing to each of the trustees within 7 days of this order that he wishes to so purchase each of the said lots, the trustees shall:

(a)       Enter into a contract for the sale of the properties described as Lot 42 on Crown Plan WD 484, County of Ward, Parish of Pimpama, Title Reference 16746132 and Lot 55 on Crown Plan WD 484, County of Ward, Parish of Pimpama, Title Reference 16746134 to George Edward Payne, for the purchase prices of $12,500 and $85,000 respectively; and

(b)      Transfer the said properties to George Edward Payne pursuant to the contract of sale, upon payment of the purchase prices.

3.        I order that if George Edward Payne does not advise each of the trustees in accordance with the order in para 2 hereof, the trustees deal with the properties in accordance with para 2 of the order of White J dated 23 July 2001.

4.        I order that the trustees deal with Lot 52 Crown Plan WD 484, County of Ward, Parish of Pimpama, Title Reference 16746133 and Lot 709 Crown Plan B7083, County of Ward, Parish of Tallebudgera, Title Reference 15579154 in accordance with para 2 of the order of White J dated 23 July 2001.

5.        I order that, in either of the cases referred to in orders 3 and 4 of this order, the sale by the trustees be by public auction, provided that should the trustees receive, in respect of any lot, an offer prior to auction and Christopher William Payne and George Edward Payne advise each of them in writing that the offer is acceptable to them, the trustees may sell the lot to which the offer relates for that sum without proceeding to auction.

6.        I order that, in respect of any lot required, under these orders, to be sold by public auction, the trustees appoint forthwith a Real Estate Agent for the sale and that:

(a)       the auctioneer shall be nominated by the trustees;

(b)      the auction take place within 2 months after appointment of the agents;

(c)       the reserve price shall unless agreed upon by the trustees be as proposed by the auctioneer;

(d)      Christopher William Payne shall be responsible for payment of all auction expenses payable before the real property is auctioned and shall be refunded all such money…

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.

Continue reading Payne v Payne

Details

AGLC: Payne v Payne [2002] QSC 111
Case: [2002] QSC 111
Decision Date: 26 April 2002

CaseChat Overview and Summary

The case of Payne v Payne involved a dispute between George Edward Payne and Christopher William Payne over the purchase of certain lots under a Consent Order. The lots in question were part of a property settlement following the divorce of the parties. Both parties had the right of first refusal to purchase any of the lots, with specific terms outlined in the Consent Order. Christopher made an offer for the lots within the prescribed terms, but George subsequently made a higher offer outside the stipulated timeframe. After George withdrew his initial offer, he made a subsequent offer which was outside the timeframe prescribed by the Consent Order. The court was tasked with determining whether George’s subsequent offer was valid despite being outside the timeframe and whether it could be considered over Christopher’s offer.

The primary legal issue before the court was whether George’s subsequent offer, which was higher than Christopher’s but made outside the timeframe prescribed in the Consent Order, could be validly considered. The court needed to interpret the terms of the Consent Order and decide if George’s subsequent offer was in breach of the order's conditions. Furthermore, the court had to determine if George’s initial higher offer, which he withdrew, could be taken into account when assessing the validity of his subsequent offer. The court also had to decide on the appropriate course of action for the trustees regarding the sale of the lots.

The court found that George's initial offer, despite being higher, was invalid as it was made outside the timeframe prescribed by the Consent Order. However, the court determined that George's subsequent offer, although also outside the prescribed timeframe, could still be considered because the terms of the Consent Order did not explicitly state that offers outside the timeframe were invalid. The court reasoned that the primary purpose of the Consent Order was to ensure fair and orderly bidding, and George’s subsequent offer, being higher, aligned with this purpose. Consequently, the court ruled that George's subsequent offer was valid and should be considered over Christopher’s offer. The court also ordered specific actions for the trustees concerning the sale of the lots and the distribution of proceeds and costs.

In conclusion, the court declared that George was at liberty to purchase the lots, provided he confirmed his intention in writing within seven days. If George confirmed his intention, the trustees were ordered to enter into a contract for the sale of the specified lots to George at the stipulated purchase prices and to transfer the properties upon payment. If George did not confirm his intention, the trustees were directed to proceed with the sale of the lots in accordance with the original Consent Order. The court further ordered the trustees to appoint a real estate agent for the sale, specify the auction terms, and handle the sale of the lots either by auction or private negotiation if an acceptable offer was received. The costs associated with the application were to be paid by the trustees from the proceeds of the sales.

Orders

Orders of the court

1. I declare that George Edward Payne is at liberty to purchase Lot 42 Crown Plan WD 484, County of Ward, Parish of Pimpama, Title Reference 16746132 and Lot 55, Crown Plan WD 484, County of Ward, Parish of Pimpama, Title Reference 16746134 in accordance with para 4 of the order of White J dated 23 July 2001.

2. I order that if George Edward Payne confirms in writing to each of the trustees within 7 days of this order that he wishes to so purchase each of the said lots, the trustees shall:

(a) Enter into a contract for the sale of the properties described as Lot 42 on Crown Plan WD 484, County of Ward, Parish of Pimpama, Title Reference 16746132 and Lot 55 on Crown Plan WD 484, County of Ward, Parish of Pimpama, Title Reference 16746134 to George Edward Payne, for the purchase prices of $12,500 and $85,000 respectively; and

(b) Transfer the said properties to George Edward Payne pursuant to the contract of sale, upon payment of the purchase prices.

3. I order that if George Edward Payne does not advise each of the trustees in accordance with the order in para 2 hereof, the trustees deal with the properties in accordance with para 2 of the order of White J dated 23 July 2001.

4. I order that the trustees deal with Lot 52 Crown Plan WD 484, County of Ward, Parish of Pimpama, Title Reference 16746133 and Lot 709 Crown Plan B7083, County of Ward, Parish of Tallebudgera, Title Reference 15579154 in accordance with para 2 of the order of White J dated 23 July 2001.

5. I order that, in either of the cases referred to in orders 3 and 4 of this order, the sale by the trustees be by public auction, provided that should the trustees receive, in respect of any lot, an offer prior to auction and Christopher William Payne and George Edward Payne advise each of them in writing that the offer is acceptable to them, the trustees may sell the lot to which the offer relates for that sum without proceeding to auction.

6. I order that, in respect of any lot required, under these orders, to be sold by public auction, the trustees appoint forthwith a Real Estate Agent for the sale and that:

(a) the auctioneer shall be nominated by the trustees;

(b) the auction take place within 2 months after appointment of the agents;

(d) Christopher William Payne shall be responsible for payment of all auction expenses payable before the real property is auctioned and shall be refunded all such money from the proceeds of the sale.

In the event that the property is not sold by auction or by private negotiation within 14 days after the said auction, then the trustees shall do all acts and sign all necessary documents to cause a second auction to be conducted within a further 5 weeks of that date otherwise upon the same terms and conditions as applied to the first auction.

7. I order that the costs of the applicant and the respondent of and incidental to the application be assessed on a standard basis and paid by the trustees from the proceeds of the sales referred to in para 4 of these orders, and that the costs of the trustees be assessed on an indemnity basis and paid from such proceeds, in each case before the proceeds are otherwise distributed in compliance with para 2 of the order of White J dated 23 July 2001.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Payne v Payne [2002] QSC 111
PARTIES:	CHRISTOPHER WILLIAM PAYNE (applicant) v GEORGE EDWARD PAYNE (respondent)
FILE NO/S:	6241 of 2001
DIVISION:	Trial Division
DELIVERED ON:	26 April 2002
DELIVERED AT:	Brisbane
HEARING DATE:	19 April 2002
JUDGE:	Mackenzie J
ORDER:	1. I declare that George Edward Payne is at liberty to purchase Lot 42 Crown Plan WD 484, County of Ward, Parish of Pimpama, Title Reference 16746132 and Lot 55, Crown Plan WD 484, County of Ward, Parish of Pimpama, Title Reference 16746134 in accordance with para 4 of the order of White J dated 23 July 2001. 2. I order that if George Edward Payne confirms in writing to each of the trustees within 7 days of this order that he wishes to so purchase each of the said lots, the trustees shall: (a) Enter into a contract for the sale of the properties described as Lot 42 on Crown Plan WD 484, County of Ward, Parish of Pimpama, Title Reference 16746132 and Lot 55 on Crown Plan WD 484, County of Ward, Parish of Pimpama, Title Reference 16746134 to George Edward Payne, for the purchase prices of $12,500 and $85,000 respectively; and (b) Transfer the said properties to George Edward Payne pursuant to the contract of sale, upon payment of the purchase prices. 3. I order that if George Edward Payne does not advise each of the trustees in accordance with the order in para 2 hereof, the trustees deal with the properties in accordance with para 2 of the order of White J dated 23 July 2001. 4. I order that the trustees deal with Lot 52 Crown Plan WD 484, County of Ward, Parish of Pimpama, Title Reference 16746133 and Lot 709 Crown Plan B7083, County of Ward, Parish of Tallebudgera, Title Reference 15579154 in accordance with para 2 of the order of White J dated 23 July 2001. 5. I order that, in either of the cases referred to in orders 3 and 4 of this order, the sale by the trustees be by public auction, provided that should the trustees receive, in respect of any lot, an offer prior to auction and Christopher William Payne and George Edward Payne advise each of them in writing that the offer is acceptable to them, the trustees may sell the lot to which the offer relates for that sum without proceeding to auction. 6. I order that, in respect of any lot required, under these orders, to be sold by public auction, the trustees appoint forthwith a Real Estate Agent for the sale and that: (a) the auctioneer shall be nominated by the trustees; (b) the auction take place within 2 months after appointment of the agents; (c) the reserve price shall unless agreed upon by the trustees be as proposed by the auctioneer; (d) Christopher William Payne shall be responsible for payment of all auction expenses payable before the real property is auctioned and shall be refunded all such money…