Re Sparks

[1999] QSC 41

IN THE SUPREME COURT

OF QUEENSLAND
  No. 190 of 1999

IN THE MATTER of the Property Law Act 1974

- and -

IN THE MATTER of an application by DAVID MICHAEL ETHERIDGE SPARKS and MARGARET HELEN SPARKS

[Re Sparks & Anor]

REASONS FOR JUDGMENT - WHITE J

Delivered 10 March, 1999

CATCHWORDS:     Vendor and purchaser summons - s.70 Property Law Act 1974 - costs’ orders.

Counsel:Mr D Campbell for the applicants.

Mr T Quinn for the respondents.

Solicitors:Hemming & Hart for the applicants.

Quinn & Scattini for the respondents.

Hearing Date:              Written submissions received 18 February 1999 and 23 February 1999..

IN THE SUPREME COURT

OF QUEENSLAND

No. 190 of 1999

IN THE MATTER of the Property Law Act 1974

- and -

IN THE MATTER of an application by DAVID MICHAEL ETHERIDGE SPARKS and MARGARET HELEN SPARKS

REASONS FOR JUDGMENT - WHITE J

Delivered 10 March 1999

1. On 16 February 1999 I gave judgment in this matter. It was a vendor and purchaser summons brought pursuant to s.70 of the Property Law Act 1974 in which the purchasers sought declarations which would entitle them to the deposit.

2. I declined to grant the relief sought because it became apparent that the summary procedure provided for in s.70 was inappropriate to deal with the matter both as to the primary relief and the issue of compensation. The vendors had taken the position that a vendor and purchaser summons was inappropriate where there was no suggestion that the contract was still on foot, contending that the proper forum was the Magistrates Court relying on the reasons for decision of Dowsett J in Re MacDonald [1987] 2 Qd R 29.

3.  If the parties were in agreement I was prepared to give directions for the disposal of the matter notwithstanding the conclusion to which I had come in the hope of saving costs. The parties have been unable to reach agreement as to the basis upon which the matter could be further dealt with in this court.

4. The applicants seek an opportunity to put further submissions or, alternatively, that the matter be listed before me when in civil sittings to allow them to put further material before the court. Both suggestions are opposed by the respondents, the first on the basis that the matter is concluded so far as the s.70 summons is concerned (in the absence of agreement); the second on the basis that a properly constituted action is required to raise all proper issues including the issue of their former solicitors’ liability.

5.  The application was brought on certain material and submissions about the contract and it must stand or fall on that material and on those submissions in the absence of agreement to the contrary. Since there is no such agreement that is the end of the matter. The respondent is entitled not to be required to litigate in this court when the appropriate forum is the Magistrates Court in light of the outcome of the application.  In that circumstance I dismiss the summons.

6. There is no good reason why costs should not follow the event. The circumstances in which it is appropriate to use a s.70 summons are set out in Dowsett J’s reasons for decision in Re MacDonald, supra, and have received several pages of commentary in Duncan and Vann, Property Law & Practice p.1399 and following. Further, the applicants must have been aware of the difficulty of proceeding in respect of their claim for compensation since the material, likely to be contentious, was served on the day of the hearing and offered very little by way of particulars.

7.  The formal orders are:

1.The summons is dismissed.

2.The applicants are to pay the respondents’ costs of and incidental to the summons to be taxed, including any costs associated with the further submissions the subject of these reasons.