Q M Properties Pty Ltd v Belscorp Pty Ltd - [2019] QCA 138

SUPREME COURT OF QUEENSLAND

CITATION:

Q M Properties Pty Ltd v Belscorp Pty Ltd [2019] QCA 138

PARTIES:

Q M PROPERTIES PTY LTD
ACN 010 716 935
(appellant)
v
BELSCORP PTY LTD
ACN 053 831 806
(respondent)

FILE NO/S:

Appeal No 8956 of 2018
SC No 3340 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2018] QSC 158 (Dalton J)

DELIVERED ON:

16 July 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11 March 2019

JUDGES:

Sofronoff P and Morrison JA and Brown J

ORDERS:

1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs of and incidental to the appeal.

CATCHWORDS:

CONVEYANCING – THE CONTRACT AND CONDITIONS OF SALE – DESCRIPTION OF PROPERTY AND SUBJECT MATTER OF SALE – FALSE REPRESENTATIONS OF PROPERTY – where both the appellant and respondent were property developers in the Brisbane area – where the respondent owned property in Albany Creek which it sold to the appellant for $3.835 million under a contract – where the respondent made a number of representations about the property prior to the execution of the contract between the appellant and respondent – where the learned trial judge found that the representations made by the respondent were false and were for the purpose of inducing the appellant to sign the contract – where the appellant sought to terminate the contract and brought proceedings against the respondent alleging breaches of s 52 and s 53A of the Trade Practices Act – whether the contract should have been terminated for the alleged breaches

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where the learned trial judge found that the representations made by the respondent were false and were for the purpose of inducing the appellant to sign the contract – where it was also found by the learned trial judge that none of the appellant’s relevant representatives relied upon what was said by the respondent – where the learned trial judge was not satisfied that the director of the appellant relied on what the respondent had said as directions were given to carry out their own enquiries and satisfy themselves as to whether or not what the respondent said was true – where the learned trial judge found that there was no causal link between the false representations made by the respondent and the execution of the contract – where the appellant contends that the learned trial judge erred in her decision – whether the learned trial judge erred in her determination of the matter below

Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209; [1999] HCA 64, cited
Carlton & United Breweries Ltd v Tooth & Co Ltd (1986) 7 IPR 581, cited
Challenger Property Asset Management Pty Ltd v Stonnington City Council (2011) 34 VR 445; [2011] VSC 184, cited
Doherty v Commissioner of Highways (1974) 7 SASR…

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.

Keep reading for free

Create a free CaseChat account to read Q M Properties Pty Ltd v Belscorp Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] QCA 138
Decision Date: 16 July 2019

CaseChat Overview and Summary

In the case of QM Properties Pty Ltd v Belscorp Pty Ltd, the appellant, a prominent property developer in Queensland, challenged the decision of the lower court which found that the respondent, another property developer, had made false representations about property in Albany Creek prior to the execution of the contract of sale. The appellant sought to terminate the contract and brought proceedings against the respondent for breaches of sections 52 and 53A of the Trade Practices Act. The central legal issue was whether the contract should be terminated due to the alleged breaches.

The court examined the trial judge's findings that the appellant had not relied on the respondent's representations, and that there was no causal link between the false representations and the execution of the contract. The appellant argued that the trial judge had erred in these determinations, but the court found no merit in the appellant's arguments. The court upheld the trial judge's findings that there was no reliance on the false representations, as the appellant's representatives were directed to carry out their own enquiries. Furthermore, the court agreed that there was no causal link between the false representations and the execution of the contract. Additionally, the court found that the trial judge's valuation of the land was not unreasonable, rejecting the appellant's contention that it provided an unfair benefit to the respondent.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of and incidental to the appeal. This decision reinforces the principle that reliance on false representations and a causal link are necessary for terminating a contract under the Trade Practices Act. The court's ruling also confirms that trial judges have discretion in valuing property, and such valuations will not be lightly disturbed on appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs of and incidental to the appeal.

Background

Background to the litigation

QM challenges the conclusion that there was no reliance upon what Belscorp had said, and as part of that attack, challenges the finding by the learned trial judge that a particular admission made in the pleadings was not binding because it had been “opened up in evidence sufficiently” to permit the learned trial judge to consider the entirety of the evidence on that issue. Associated challenges are made as to the learned trial judge’s finding that there was no causal link between the false representations and the execution of the contract. Finally, on Belscorp’s counterclaim, QM challenges the finding that the value of the land was $700,000, contending that to do so provided a windfall benefit for Belscorp, as the land remained a development prospect worth much more than $700,000.Background to the parties In the learned trial judge’s decision[1] the nature of the parties was identified. Salient features of that are set out below.[2][1]QM Properties Pty Ltd v Belscorp Pty Ltd [2018] QSC 158 (Reasons below).[2]Without intending any disrespect I will refer to individuals by surname only, unless some distinction is required. QM was one of the largest privately owned property development companies in Queensland. It was of a size where it competed directly with publicly listed property developers. It had two offices, one in Brisbane city, as well as one at Burpengary. It had about 100 employees and in the financial year ending 2007, made a profit of about $25 million. The head of QM was Haseler, who had been a property developer since 1974, and had operated QM since 1987. Haseler’s general manager was Ian Russell who had been a property developer himself since 1981. The development manager for QM was a Mike Russell[3] who had worked at QM since 1984. Working directly below him in the hierarchy were three project managers, one of whom was Mackney. He had been a project manager with QM for over 20 years.[3]No relation to Ian Russell. Belscorp was quite different from QM. It was controlled by Murphy. There were only five members of staff and an office at Kallangur. The staff included a Van der Meer, who was employed as a project manager. Lord kept the office running, and occasionally performed the duties of project manager when it became necessary to do so. Also on the payroll were a salesman, bookkeeper and a gardener.Relevant credit findings The learned trial judge made a number of credit findings, both in a general sense and on specific issues. Her Honour recorded that they were “largely based on the substance of the evidence given”, which meant that they could not be conveniently collected in one place in the reasons below. Her Honour described them, however, as being “integrally bound up in my discussions of the evidence in this very fact-rich case”.[4][4]Reasons below at [6]. The general finding was that her Honour accepted the evidence of Mackney where referred to in the Reasons below, unless stated otherwise. In terms of adverse credit findings, her Honour rejected the evidence of Ian Russell unless it was corroborated, or against QM’s interests.[5] Her Honour’s findings were not timid in nature. His evidence was considered as being “dishonest” and “given to advance QM’s position”. Her Honour was at pains to point out that whilst Ian Russell’s demeanour in the witness box contributed to her conclusions, they were based to a more significant extent on the substance of his evidence.[5]Reasons below at [8].

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:	Q M Properties Pty Ltd v Belscorp Pty Ltd [2019] QCA 138
PARTIES:	Q M PROPERTIES PTY LTD ACN 010 716 935 (appellant) v BELSCORP PTY LTD ACN 053 831 806 (respondent)
FILE NO/S:	Appeal No 8956 of 2018 SC No 3340 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2018] QSC 158 (Dalton J)
DELIVERED ON:	16 July 2019
DELIVERED AT:	Brisbane
HEARING DATE:	11 March 2019
JUDGES:	Sofronoff P and Morrison JA and Brown J
ORDERS:	1. The appeal is dismissed. 2. The appellant is to pay the respondent’s costs of and incidental to the appeal.
CATCHWORDS:	CONVEYANCING – THE CONTRACT AND CONDITIONS OF SALE – DESCRIPTION OF PROPERTY AND SUBJECT MATTER OF SALE – FALSE REPRESENTATIONS OF PROPERTY – where both the appellant and respondent were property developers in the Brisbane area – where the respondent owned property in Albany Creek which it sold to the appellant for $3.835 million under a contract – where the respondent made a number of representations about the property prior to the execution of the contract between the appellant and respondent – where the learned trial judge found that the representations made by the respondent were false and were for the purpose of inducing the appellant to sign the contract – where the appellant sought to terminate the contract and brought proceedings against the respondent alleging breaches of s 52 and s 53A of the Trade Practices Act – whether the contract should have been terminated for the alleged breaches APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where the learned trial judge found that the representations made by the respondent were false and were for the purpose of inducing the appellant to sign the contract – where it was also found by the learned trial judge that none of the appellant’s relevant representatives relied upon what was said by the respondent – where the learned trial judge was not satisfied that the director of the appellant relied on what the respondent had said as directions were given to carry out their own enquiries and satisfy themselves as to whether or not what the respondent said was true – where the learned trial judge found that there was no causal link between the false representations made by the respondent and the execution of the contract – where the appellant contends that the learned trial judge erred in her decision – whether the learned trial judge erred in her determination of the matter below Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209; [1999] HCA 64, cited Carlton & United Breweries Ltd v Tooth & Co Ltd (1986) 7 IPR 581, cited Challenger Property Asset Management Pty Ltd v Stonnington City Council (2011) 34 VR 445; [2011] VSC 184, cited Doherty v Commissioner of Highways (1974) 7 SASR…