Pensini v Tablelands Regional Council - [2012] QCA 137

SUPREME COURT OF QUEENSLAND

CITATION:

Pensini & Anor v Tablelands Regional Council & Anor [2012] QCA 137

PARTIES:

PAUL JAMES PENSINI
(first appellant)
NOEL PETER PENSINI
(second appellant)
v
TABLELANDS REGIONAL COUNCIL
(first respondent)
NATIONAL AUSTRALIA BANK LIMITED
ACN 004 044 937
(second respondent)

FILE NO/S:

Appeal No 8341 of 2011
SC No 324 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON: 25 May 2012

DELIVERED AT: Brisbane

HEARING DATE:

20 February 2012

JUDGES:

Margaret McMurdo P, White JA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed.
2. Appeal against the costs order is dismissed.

3. Appellants pay the first respondent’s costs of the appeal on the standard basis.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – where appellants alleged that the trial judge erred in finding that a binding contract existed and in ordering specific performance – whether the trial judge was correct in concluding that the Council and the appellants had entered into a binding and enforceable contract – whether Council provided consideration for the contract – whether there were discretionary reasons as to why specific performance should not be ordered – whether the trial judge erred in ordering specific performance of the contract

Land Act 1994 (Qld), s 98, s 99, s 100, s 101, s 102, s 108, s 109, s 358
Local Government Act 1993 (Qld), s 914
Uniform Civil Procedure Rules 1999 (Qld), Chapter 9 Part 5, r 360(1)

Jones v Millward [2005] 1 Qd R 498; [2005] QCA 76, cited

COUNSEL:

A P J Collins for the appellants
M A Jonsson for the respondents

SOLICITORS:

Williams, Graham & Carman Solicitors for the appellants
MacDonnells Law for the respondents

MARGARET McMURDO P: I agree with Margaret Wilson AJA's reasons for dismissing the appeal (including the appeal against costs) with costs and with the orders proposed.

WHITE JA: I have read the reasons for judgment of Margaret Wilson AJA and agree with her Honour’s reasons and the orders which she proposes.

MARGARET WILSON AJA: The appellants are primary producers at Kairi on the Atherton Tableland. They were registered owners as tenants in common of seven parcels of land in the County of Nares Parish of Barron within the area of the Atherton Shire Council (“the Council”). The second respondent was the mortgagee of the land.

The land was bounded to the north by Pasetti Road, to the east by Tinaroo Falls Dam Road and to the west by Sorrensen Road. To the south it was bounded by Johnson Road and Poggioli Street. Another road ("the subject road") ran through the land from Tinaroo Falls Dam Road to Sorrensen Road. The area of the subject road was about 1.744 ha.

Three of the parcels were to the north of the subject road. Lot 830 on Crown Plan N 157361 (64.75 ha) adjoined the subject…

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: [2012] QCA 137
Decision Date: 25 May 2012

CaseChat Overview and Summary

In this case, the Supreme Court of Queensland dismissed an appeal brought by the appellants, Paul James Pensini and Noel Peter Pensini, against the decision of the trial judge who ordered specific performance of an agreement between the appellants and the respondent, Tablelands Regional Council. The appellants argued that the trial judge erred in finding that a binding contract existed and in ordering specific performance. The court found that the four letters exchanged between the parties constituted an enforceable agreement requiring the appellants to complete the amalgamation of their seven existing parcels of land into three lots. The court also held that there was sufficient consideration for the agreement and that there were no discretionary reasons to refuse specific performance. The appeal against the costs order was also dismissed, and the appellants were ordered to pay the first respondent's costs of the appeal on the standard basis.

Orders