Pendleton v French

[2012] QDC 275

DISTRICT COURT OF QUEENSLAND

CITATION:

Pendleton & Anor v French & Anor [2012] QDC 275 (delivered ex tempore)

PARTIES:

BRADLEY DAVID PENDLETON
(First Applicant/Plaintiff)

And

DIANE MARY PENDLETON
(Second Applicant/Plaintiff)

v

GRANT GORDON FRENCH
(First Respondent/Defendant)

And

TRACEY MARIE FRENCH
(Second Respondent/Defendant)

FILE NO:

493/2012

DIVISION:

PROCEEDING:

Application for summary judgment

ORIGINATING COURT:

Brisbane

DELIVERED ON:

21 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2012

JUDGE:

Samios DCJ

ORDER:

1.   Summary judgment for the plaintiffs against the defendants for the sum of $163,756.89.

2.   That the defendants are to pay the plaintiffs of the proceedings, and this application, to be assesed on the indemnity basis.

CATCHWORDS:

PRACTICE – Summary Judgment – where there is no prospect of successfully defending all or part of the plaintiffs' claim

COUNSEL:

B. Kidston for the Applicants.

A. Sinclair for the Respondents.

SOLICITORS:

McKays Solicitors for the Applicants.

The Kent Law Firm for the Respondents.

1. This is an application for summary judgment.  The plaintiff's claim concerns the failed sale of real property at Buderim.  The plaintiffs sue for the unpaid balance of the deposit, a shortfall on resale, and some associated costs and interest.

1. It is not in dispute that the plaintiffs and the defendants entered into a contract of sale dated 27 November, 2010, by which the plaintiffs agreed to sell to the defendants the property at Buderim for the sum of $1.215 million.  The contract required the defendants to pay a deposit totalling $42,000 by instalments.

1. It is accepted the defendants failed to pay $20,000 of the deposit when that was due under the contract, and they were therefore in breach of the contract. It is also accepted that the plaintiffs by their solicitors on 1 March, 2011, elected to terminate the contract for the defendants' breach.

1. It is also accepted the plaintiffs undertook a marketing campaign, and after six months managed to resell the property for the sum of $1.1 million, with settlement occurring on 11 November, 2011.  Therefore, there was a shortfall of a $115,000 between the initial contract and the subsequent contract.

1. The plaintiffs commenced these proceedings on 9 February, 2012, seeking to recover the unpaid balance of the deposit, the shortfall on resale and sale costs and interest.

1. The defendants have filed a defence admitting the contract and the breach, and the subsequent resale and the shortfall.  However, the defendants allege that the plaintiffs failed to mitigate their loss.  They allege the property became infested with termites after the contract, but before the resale contract.

1. Further, that the plaintiffs failed to install and maintain a termite barrier.  Further, that termites resulted in a significant reduction of value of the property.  Further, the plaintiffs failed to mitigate their loss, and finally, the defendants are not responsible for any alleged losses to the extent the plaintiffs failed to mitigate their loss.

1. Rule 292 of the UCPR is the relevant rule.  Sub-rule 2 provides, "If the Court is satisfied that the defendant has no real prospect of successfully defending all or part of the plaintiff's claim, and that there is no need for trial of the claim, or part of the claim, the Court may give judgment for the plaintiff against the defendant for all or part of the plaintiff's claim, and may make any other order the Court considers appropriate".

1. I have been referred to a number of authorities where this rule has been discussed.  It seems to me on the hearing of this application today, that there is no prospect for the defendants to successfully defend the claim for the unpaid balance of the deposit, which is a sum of $20,000.  The solicitor's costs and resale, which is a sum of $770, and interest, which I would allow a 10 per cent per annum, payable up until the date of the resale contract, on the outstanding sum under the contract, which is a sum of $55,590.41.

1. Further, there is no need for a trial of those claims, and there should be judgment for the plaintiffs against the defendants for those sums.

1. However, as to the loss on resale, here again, I am of the view the defendants do not show that there is any prospect of successfully defending all or part of the plaintiffs' claim in that respect, and I am of the view there is no need for a trial of that claim.  And that is because, it seems to me, despite the affidavits of Mr Stewart and Tracey Marie French that the presence of termites is not something that can realistically be said to have influenced or caused the loss in value of the property in the period between the initial contract and the subsequent contract.

1. The defendants have no evidence that the presence of termites caused the actual purchaser or the market, which could have been attested to by a valuer, to fall, because of the presence of termites.

1. I do not accept that the defendants have shown any basis to argue that the plaintiffs failed to mitigate their loss.

1. Therefore, in my opinion, there should also be judgment in favour of the plaintiffs against the defendants for the sum of $73,000, which is the shortfall of $115,000 on resale, less the deposit of $42,000.

1. I also allow $7465.48 for interest, being interest on the shortfall of $73,000, as well as on that part of the deposit that was not paid from the date of settlement of the resale contract to today.

1. The total, therefore, is $163,756.89.  I give judgment for the plaintiffs against the defendants for the sum of $163,756.89.

1. In the circumstances, I consider it is appropriate that under the contract the plaintiffs be allowed costs of the proceedings, and this application, to be assessed on the indemnity basis.