Pouzyr v Makhanyok - [2014] QDC 112

DISTRICT COURT OF QUEENSLAND

CITATION:

Pouzyr v Makhanyok & Anor [2014] QDC 112

PARTIES:

IAROSLAV POUZYR
(plaintiff)

v

ANDREY MAKHANYOK
(first defendant)

and

ELENA MAKHANYOK
(second defendant)

FILE NO/S:

SD207/11

DIVISION:

Civil

PROCEEDING:

Claim and Counterclaim

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

20 May 2014

DELIVERED AT:

Brisbane

HEARING DATES:

15, 16, 17 October 2013 and 24, 25 March 2014 (written submissions completed on 9 May 2014)

JUDGE:

Dorney QC DCJ

JUDGMENTS AND ORDERS:

1.      On the Claim, there be judgment for the defendants against the plaintiff.

2.      On the Counterclaim, there be judgment for the plaintiff against the defendants.

3.      All parties have leave to file, and serve, written submissions on costs by 4pm 27 May 2014.

CATCHWORDS:

Restitution - whether contractual framework had distributed risks - whether such distribution would be impermissibly redistributed by a restitutionary remedy - where contractual framework was the subject of prior judicial determination

LEGISLATION CITED:

Foreign Acquisitions and Takeovers Act 1975 (Cth)

Property Agents and Motor Dealers Act 2000, s 365, s 369, s 369A, s 370A

Queensland Building Services Authority Act 1991

CASES CITED:

Australia and New Zealand Banking Group Ltd v WBC (1988) 164 CLR 662

Australian Financial Services and Leasing P/L v Hills Industries Ltd [2014] HCA 14

Brewer Street Investments Ltd v Barclays Woollen Co Ltd [1954] 1 QB 428

David Securities P/L v CBA (1992) 175 CLR 353

Equuscorp P/L v Haxton (2012) 246 CLR 498

Hills Industries Ltd v Australian Financial Services and Leasing P/L [2012] NSWCA 380

Lumbers v W Cook Builders P/L (In Liq) (2008) 232 CLR 635

Nepean District Tennis Association Inc v Penrith City Council (1988) 66 LGRA 440

Pan Ocean Shipping Co Ltd v Creditcorp Ltd [1994] 1 WLR 161

Pavey & Matthews P/L v Paul (1987) 162 CLR 221

Peet Ltd v Richmond (2011) 33 VR 465

Regalian Properties plc v London Docklands Development Corp [1995] 1 All ER 1005

Sabemo P/L v North Sydney Municipal Council [1977] 2 NSWLR 880

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

Ward v Eltherington [1982] Qd R 561

COUNSEL:

Self-representation by the plaintiff

J Sweeney for the defendants

SOLICITORS:

Michael Sing Lawyers for the defendants

Introduction

On 21 April 2011 Daubney J, in the Supreme Court of Queensland, declared that a Contract of Sale made 31 January 2011 (Exhibit 1, Item “IP10”) between the plaintiff, as vendor, and the defendants, as purchasers, was “validly terminated”. The termination was pursuant to s 370A of the Property Agents and Motor Dealers Act 2000 (“PAMDA”). The provision dealt with termination during a “cooling-off” period. In addition, Daubney J stayed a consequential judgment (that the plaintiff pay the defendants the sum of $146,250.00 - being $150,000.00 less the statutory cooling-off “termination penalty”) for 28 days. This was to permit the plaintiff to commence proceedings against the defendants “seeking relief at law or in equity with respect to, inter alia, the entitlement of the (plaintiff) to retain or be paid the sum of…

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: [2014] QDC 112
Decision Date: 20 May 2014

CaseChat Overview and Summary

The case of Pouzyr v Makhanyok involved a dispute between the parties, Pouzyr and Makhanyok, concerning the applicability of a restitutionary remedy under certain circumstances. The matter was heard by the Supreme Court of New South Wales. The primary focus of the dispute was whether the contractual framework between the parties had effectively distributed risks and whether a restitutionary remedy would impermissibly redistribute those risks, especially in light of prior judicial determinations concerning the contractual framework.

The court was tasked with determining whether a restitutionary remedy would be appropriate in this context, given the prior judicial determinations regarding the contractual framework. Specifically, the court had to consider whether the contractual framework had effectively distributed the risks between the parties and whether granting a restitutionary remedy would result in an impermissible redistribution of those risks.

The court concluded that the contractual framework did indeed distribute the risks among the parties, and that granting a restitutionary remedy would not result in an impermissible redistribution of those risks. The court's reasoning was grounded in the established principles of contract law and the prior judicial determinations concerning the contractual framework. Consequently, the court found in favour of Makhanyok, affirming that the contractual framework had successfully allocated the risks and that a restitutionary remedy would not unfairly redistribute those risks.

The final orders of the court were that Makhanyok was not required to provide a restitutionary remedy to Pouzyr, as the contractual framework had effectively distributed the risks and prior judicial determinations supported this conclusion.

Orders