Plummer v GPD Marina Village - [2011] QSC 9

SUPREME COURT OF QUEENSLAND

CITATION:

Plummer v GPD Marina Village & Ors [2011] QSC 9

PARTIES:

BENJAMIN KEITH PLUMMER & MIRANDA PLUMMER
(plaintiffs)
v
GPD MARINA VILLAGE PTY LTD
ACN 104 423 289
(first defendant)
EUREKA BOB PTY LIMITED
ACN 121 361 206
(second defendant)
GENWORTH FINANCIAL MORTGAGE INSURANCE PTY LIMITED
ACN 106 974 305
(third defendant)

FILE NO/S:

SC No 208 of 2008

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

31 January 2011

DELIVERED AT:

Townsville

HEARING DATE:

15 December 2010

JUDGE:

Cullinane J

ORDERS:
As against the first and second defendants declare that the plaintiffs are entitled to recover the sum of $90,000 paid by the third defendant to the second defendant. a)

Order that the second defendant pay the sum of $90,000 with interest in the sum of $25,301.16 to the plaintiffs (1026 days from 10 April 2008 at $24.66 per day).b)

I dismiss the second defendant's counterclaim against the plaintiffs.c)

I give judgment for the third defendant against the plaintiffs in the sum of $90,000 together with interest thereon from 3 January 2008 in the sum of $24,953.06 (1123 days from 3 January 2008 at a rate of $22.22 per day).d)

I dismiss the plaintiffs' claims against the third defendant.e)

I give the parties liberty to apply on the issue of costs in writing within 14 days.f)

CATCHWORDS:
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – where the contract was entered into by the plaintiffs and the first defendant in respect of a lot in a proposed development – where the first defendant was a trustee of the relevant land – where by deed of retirement and appointment of trustee the second defendant became the trustee of the relevant land in substitution for the first defendant – where the contract price was $90,000 and provided for a deposit of $9,000 – where the contract provided for a deposit guarantee which was provided by the third defendant – where by novation deed sent to the plaintiffs by the second defendants the second defendant would assume the first defendants contractual obligations and benefits

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where the contract contained a finance clause which pre-dated the time of the contracts coming into existence – what effect the finance clause expressed in its form has, if any

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – PERFORMANCE – where the plaintiffs wrote to the first defendant purporting to terminate the contract because of the plaintiffs failure to obtain finance – where the second defendant wrote to the plaintiffs alleging that the plaintiffs were in breach of the contract – where the second defendant purported to terminate the contract – where the plaintiff wrote to the second defendant requesting the return of the deposit guarantee – where the second defendant wrote to the plaintiff rejecting the plaintiffs claim to the return of the guarantee – where…

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: [2011] QSC 9
Decision Date: 31/01/2011

CaseChat Overview and Summary

The plaintiffs, Plummer, entered into a contract with GPD Marina Village, represented by the first defendant, for the purchase of a lot in a proposed development. The first defendant was a trustee of the relevant land, and later, the second defendant assumed this role by deed of retirement and appointment of trustee. The contract price was $90,000, with a deposit of $9,000, and a deposit guarantee was provided by the third defendant. The dispute arose when the plaintiffs attempted to terminate the contract due to their failure to secure finance, and the second defendant alleged that the plaintiffs were in breach and terminated the contract. The plaintiffs sought to recover the deposit, while the third defendant sought repayment of the $90,000 paid to the second defendant.

The court was required to determine whether the plaintiffs were entitled to the return of their deposit, whether the second defendant was liable to pay the contract price, and whether the third defendant was entitled to recover the $90,000 paid to the second defendant. The court also had to consider the effect of a finance clause in the contract and whether the novation deed effectively transferred the first defendant's obligations and benefits to the second defendant. Additionally, the court needed to assess whether the plaintiffs were in breach of contract and if the second defendant's termination was valid.

The court held that the novation deed did not transfer the first defendant's obligations and benefits to the second defendant. The court found that the second defendant was liable to pay the contract price to the plaintiffs, and the plaintiffs were entitled to recover the $90,000 paid by the third defendant to the second defendant. The court also dismissed the second defendant's counterclaim against the plaintiffs and the plaintiffs' claims against the third defendant. The court ordered the second defendant to pay the contract price with interest to the plaintiffs and gave judgment for the third defendant against the plaintiffs for the $90,000 paid by the third defendant, with interest. The court dismissed the plaintiffs' claims against the third defendant and granted the parties liberty to apply for costs.

The court's final orders declared that the plaintiffs were entitled to recover the sum of $90,000 paid by the third defendant to the second defendant and ordered the second defendant to pay the sum of $90,000 with interest to the plaintiffs. The court dismissed the second defendant's counterclaim and the plaintiffs' claims against the third defendant. The court granted judgment for the third defendant against the plaintiffs for the sum of $90,000 together with interest and gave the parties liberty to apply for costs.

Orders

Orders of the court

As against the first and second defendants declare that the plaintiffs are entitled to recover the sum of $90,000 paid by the third defendant to the second defendant. a)

Order that the second defendant pay the sum of $90,000 with interest in the sum of $25,301.16 to the plaintiffs (1026 days from 10 April 2008 at $24.66 per day).b)

I dismiss the second defendant's counterclaim against the plaintiffs.c)

I give judgment for the third defendant against the plaintiffs in the sum of $90,000 together with interest thereon from 3 January 2008 in the sum of $24,953.06 (1123 days from 3 January 2008 at a rate of $22.22 per day).d)

I dismiss the plaintiffs' claims against the third defendant.e)

I give the parties liberty to apply on the issue of costs in writing within 14 days.f)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Plummer v GPD Marina Village & Ors [2011] QSC 9
PARTIES:	BENJAMIN KEITH PLUMMER & MIRANDA PLUMMER (plaintiffs) v GPD MARINA VILLAGE PTY LTD ACN 104 423 289 (first defendant) EUREKA BOB PTY LIMITED ACN 121 361 206 (second defendant) GENWORTH FINANCIAL MORTGAGE INSURANCE PTY LIMITED ACN 106 974 305 (third defendant)
FILE NO/S:	SC No 208 of 2008
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	31 January 2011
DELIVERED AT:	Townsville
HEARING DATE:	15 December 2010
JUDGE:	Cullinane J
ORDERS:	As against the first and second defendants declare that the plaintiffs are entitled to recover the sum of $90,000 paid by the third defendant to the second defendant. a) Order that the second defendant pay the sum of $90,000 with interest in the sum of $25,301.16 to the plaintiffs (1026 days from 10 April 2008 at $24.66 per day).b) I dismiss the second defendant's counterclaim against the plaintiffs.c) I give judgment for the third defendant against the plaintiffs in the sum of $90,000 together with interest thereon from 3 January 2008 in the sum of $24,953.06 (1123 days from 3 January 2008 at a rate of $22.22 per day).d) I dismiss the plaintiffs' claims against the third defendant.e) I give the parties liberty to apply on the issue of costs in writing within 14 days.f)
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – where the contract was entered into by the plaintiffs and the first defendant in respect of a lot in a proposed development – where the first defendant was a trustee of the relevant land – where by deed of retirement and appointment of trustee the second defendant became the trustee of the relevant land in substitution for the first defendant – where the contract price was $90,000 and provided for a deposit of $9,000 – where the contract provided for a deposit guarantee which was provided by the third defendant – where by novation deed sent to the plaintiffs by the second defendants the second defendant would assume the first defendants contractual obligations and benefits CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where the contract contained a finance clause which pre-dated the time of the contracts coming into existence – what effect the finance clause expressed in its form has, if any CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – PERFORMANCE – where the plaintiffs wrote to the first defendant purporting to terminate the contract because of the plaintiffs failure to obtain finance – where the second defendant wrote to the plaintiffs alleging that the plaintiffs were in breach of the contract – where the second defendant purported to terminate the contract – where the plaintiff wrote to the second defendant requesting the return of the deposit guarantee – where the second defendant wrote to the plaintiff rejecting the plaintiffs claim to the return of the guarantee – where…