Re Sparks & Sparks - [1999] QSC 24

IN THE SUPREME COURT
OF QUEENSLAND
No. 190 of 1999
[Re Sparks & Sparks]

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 the 16th day of February 1999

CATCHWORDS: Vendor and purchaser summons - s.70 Property Law Act 1974 - appropriateness of procedure - declarations re deposit - compensation - construction of two contracts - form of conveyance - outstanding issues of fact.

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: 8 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 the 16th day of February 1999

The applicants, Mr and Mrs Sparks, the purchasers, seek declarations and compensation against the respondents, Mrs and Mrs Marriage, the sellers, on a summons brought pursuant to s.70 of the Property Law Act 1974. Mr T Quinn who appears for the sellers objects to the use of this form of relief since neither party contends that the contract is still on foot. The purchasers seek declarations that good title had not been shown in accordance with the contract and are thereby entitled to the deposit. They also seek compensation for legal and other expenses associated with the purchase and interest on the deposit. Dowsett J in Re MacDonald [1987] 2 Qd R 29 discussed limitations on the use of s.70 where both parties had clearly abandoned the contract. If this matter were not to be heard on a s.70 summons it could not be treated as an application pursuant to O.64 r.1 BB because of the claim for compensation which involves contested issues of fact. Since I have reserved the application it has become apparent that there are other issues of fact going to the principal relief that have not been adverted to fully in the material and which are likely to be necessary for a resolution of this matter.
The proper forum for this dispute given the amount in issue is the Magistrates Court however the state of the chamber list was such that there was time available to hear the application and not to have heard it in that circumstance would have led to wasted costs. In order to identify the “missing” facts it is necessary to consider briefly the chronology and the relevant terms of the contract
On 25 May 1998 the Sparks entered into a contract with the Marriages to purchase an apartment situated at “Cathedral Place” in Brisbane. The Marriages are the original purchasers from the developer, Cathedral Place Developments Pty Ltd., and had onsold it whilst it was still under construction to the Sparks. The contract…

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: [1999] QSC 24
Decision Date: 16 February 1999

CaseChat Overview and Summary

The case of Re Sparks & Sparks involved David Michael Etheridge Sparks and Margaret Helen Sparks, the applicants, seeking declarations and compensation against the respondents, Mrs and Mrs Marriage. The applicants sought relief under section 70 of the Property Law Act 1974 after the respondents failed to comply with the terms of a contract of sale for an apartment in Brisbane. The applicants sought declarations that good title had not been shown, entitling them to the deposit, and compensation for legal and other expenses, as well as interest on the deposit. The respondents objected to the use of section 70 relief, arguing that both parties had abandoned the contract. The court considered that the appropriate forum for this dispute was the Magistrates Court, but due to the availability of time in the Supreme Court, the application was reserved. The court identified issues of fact that needed to be determined, such as the nomination of the settlement date by the developer, and whether the respondents had breached the contract. The court also found that the claim for compensation was contentious due to the lack of particulars and evidence to support the quantum of the claim. Ultimately, the court declined to make the declarations sought or assess the amount of compensation, and proposed adjoining the summons to the civil list for further submissions.

The legal issues in this case involved the interpretation of the contract between the applicants and the respondents, and the appropriateness of section 70 relief in the circumstances. The court considered whether the respondents had breached the contract by failing to settle on the agreed date and time, and whether the applicants were entitled to the deposit and compensation as a result. The court also considered whether the claim for compensation was adequately supported by evidence and particulars. The court found that there were unresolved issues of fact that needed to be determined before the court could make the declarations sought or assess the amount of compensation. The court also found that the claim for compensation was contentious due to the lack of particulars and evidence to support the quantum of the claim.

Orders