Rickards v Greenhalgh
[2009] QDC 156
•17 June 2009
DISTRICT COURT OF QUEENSLAND
CITATION:
Rickards v Greenhalgh [2009] QDC 156
PARTIES:
Kimberley Ellen Rickards
(Plaintiff)
v
Charles Richardson Greenhalgh
(First Defendant)
And
Helene Mary Greenhalgh
(Second Defendant)
And
Tony Andrew Brazil
(Third Defendant)
And
Michelle Leanne Brazil
(Fourth Defendant)
FILE NO/S:
No 73 of 2008
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Mackay
DELIVERED ON:
17 June 2009
DELIVERED AT:
Brisbane
HEARING DATE:
6-7 May 2009
JUDGE:
Judge Searles DCJ
ORDER:
Plaintiff’s claim is dismissed;1.
Judgement for the defendants on their counterclaim in the sum of $1,000 together with interest at 10% from 28 April 2007 until judgment.2.
All parties be entitled to make written submissions on costs within 7 days. In the event no submissions are made, the plaintiff to pay the defendants’ costs on a standard basis.3.
COUNSEL:
P. Lands – Plaintiff
A. Moon – Defendant
SOLICITORS:
S.R Wallace & Wallace – Plaintiff
Ruddy Tomlins & Baxter Solicitors – Defendant
Property Ownership
Materially, the plaintiff is the owner of the property at 1A Raleigh Street, Ooralea, Mackay, Queensland, (Raleigh Street), the first and second defendants the owners of the property at 41 McIntyre St, Mackay, (McIntyre Street) and the third and fourth defendants the owners of the property at 23 Scott Street, Mackay, (Scott Street).
Contract of Sale
By contract of sale dated 26 February 2007 the plaintiff agreed to sell her Raleigh Street property to the defendants for the sum of $675,000. The contract was subject to a Special Condition in these terms:
“This contract is subject to the buyers entering into a contract for the sale of the following properties, 41 McIntyre Street, Mackay and 23 Scott Street, Mackay and that they be unconditional on or before 27 April 2007. The buyer shall take all reasonable steps to satisfy this condition on or before the due date.”
Plaintiff’s Allegations
The plaintiff alleges[1] that the defendants breached the special condition thereby repudiating the Raleigh Street contract entitling her to terminate it which she says she lawfully did. She claims damages for that breach.
[1]Statement of Claim paragraphs 15, 19.
Alleged Repudiatory Conduct of the First and Second Defendants
As against the first and second defendants the plaintiff alleges their repudiation was constituted by their following conduct:
(a) impeding the sale of 41 McIntyre Street by going away on holidays after they had placed it on the market for sale and not leaving the real estate agent with whom they had placed the property for sale, or any other person, with keys that gave access to the rear of the property, including the swimming pool area and the shed so as to be able to show prospective purchasers of the property through these features of the property;
(b) being impossible to contact for the first few days of their holiday;
(c) orally rejecting a written offer to purchase the property at 41 McIntyre Street for $410,000;
(d) orally rejecting an offer to purchase the property at 41 McIntyre Street for $425,000;
(e) orally rejecting an offer to purchase the property at 41 McIntyre Street for $430,000 including a reduction in commission by 50% that they would have to pay to their real estate agent, the combination of which have allowed them to clear $425,000 on the sale;
(f) orally instructing their real estate agent that they refused to sign any contract for the sale of their property even for the full asking price of $445,000 until after 27 April 2007; and
(g) orally instructing their real estate agent to the effect to inform all potential buyers of their property to come back in a month’s time.[2]
[2]Amended Statement of Claim paragraph 15.
Alleged Repudiatory Conduct of the Third and Fourth Defendants
Against the third and fourth defendants the plaintiff alleges the following repudiatory conduct:[3]
(a) on 13 April 2007 they orally instructed their real estate agent to the effect that they would refuse to sign the Scott Street contract, or any contract for the sale of their property at 23 Scott Street, Mackay on or before 27 April 2007; and
(b) did not execute the Scott Street contract or any other contract for the sale of 23 Scott Street, Mackay on or before 27 April 2007.
[3]Amended Statement of Claim paragraph 19.
The real estate agent involved was Jacqueline Alexander of ATK Real Estate Solutions Mackay (ATK) the principal of which was Mr Mike Althaus.[4] Ms Alexander was the agent for all parties, that is to say for the plaintiff on the sale to the defendants and for the defendants in the marketing of the McIntyre and Scott Streets. properties.
[4]Transcript 1.78.28.
Background to Purchase of Raleigh Street
It was common ground that the 5 year old daughter of the third and fourth defendants, Mr and Mrs Brazil, suffered from cystic fibrosis and that Mrs Brazil’s parents, the first and second defendants, Mr and Mrs Greenhalgh, assisted in her care. The Raleigh Street property presented to the defendants an opportunity for both families to live together which would better facilitate the assistance rendered by the first and second defendants.
There was one initial concern entertained by Mr and Mrs Greenhalgh and that related to the granny flat/shed on the property. The plan was for Mr and Mrs Greenhalgh to live in that granny flat which was to be renovated. Relevant Council approval for the granny flat allowed it to be used for accommodation, but not as a granny flat. It would have required a connecting roof with the main house. Mr Greenhalgh had recently experienced an incident with one of his neighbours concerning an addition he had made to his property resulting in him being reported to the local Council. For that reason and he and his wife were concerned that no similar problem with the Council should arise in relation to their proposed occupancy of the granny flat. To that end they initially sought a written assurance from the agent that the Council could not force them out of the granny flat.[5] This written request for the letter of comfort was written in March 2007 during the 5 day cooling off period in the Property Agents and Motor Dealers Act 2000[6] during which the defendants as purchasers could have extricated themselves from the contract without cause.
[5]Exhibit 21.
[6]See s 368.
In the result, within that 5 day period and after discussing the matter with their daughter and son-in-law, Mr and Mrs Greenhalgh did not pursue that issue and accepted any risk attaching to their occupation of the granny flat.
Attempts at Sale of McIntyre Street Property
I mention several matters I consider of significance before dealing with the chronology of events of the attempted sale of McIntyre Street. It was common ground that the asking price set by Mr and Mrs Greenhalgh was $445,000 which Ms Alexander, as their agent, regarded as reasonable.[7] It was common ground that, even though $445,00 was their asking price, Mr Greenhalgh, on behalf of him and his wife, told Ms Alexander that to make the Raleigh Street acquisition work from their point of view they needed to clear on sale $425,000 nett of agent’s commission.. He explained that he and his wife owned their house unencumbered, but that their daughter’s and son-in-law’s Scott Street property was subject to a mortgage. Mr Greenhalgh explained that if both McIntyre Street and Scott Street were sold, it was intended that he and his wife would put $400,000 from the McIntyre Street proceeds to the purchase of the Raleigh Street contract. The balance $25,000 was to be used for the renovations.[8] For Mr and Mrs Greenhalgh to clear $425,000 on the sale of McIntyre Street meant their bottom line sale price would have had to be $437,000, the commission being $12,000.[9]
[7]Transcript page 1.87.05, 3.49.45.
[8]Transcript page 2.48.10 – 14.
[9]Transcript 2.12.25 – 35.
The next matter, again not in dispute,[10] was Mr Greenhalgh’s requirement that any serious offers to be considered were to be in writing. Finally, as a part of the respective agency agreements between Ms Alexander and the four defendants, Ms Alexander was to personally pay all advertising costs on both the McIntyre and Scott Street properties. That advertising comprised a full advertisement every weekend in the local newspaper, the arrangement of open house inspections, signs, photographs and the like. Ms Alexander gave evidence that on McIntyre Street she spent nearly $1,000 and on Scott Street, between $650 and $700. Once the advertising was locked in, it was a set program paid for upfront, and it ran for a consecutive number of weeks. Sensibly, the open house inspections were run consecutively on the same day so that people at the first inspection could be taken to the next house. Generally, it was McIntyre Street first and then Scott Street, about 15 minutes apart.[11]
[10]Transcript 2.10.45, 2.52.20.
[11]Transcript 1.85.45 – 60, 1.86.1 – 30.
Attempted Sale of McIntyre Street
Ms Alexander said that the McIntyre Street open houses were successful up until when Mr and Mrs Greenhalgh went on holidays on 26 March 2007 which was midway through the 60 day agency agreement she had with them. Those open houses, as with those for Scott Street, occurred on 4 March, 11 March, 17 March and 1 April. There was no open house on the weekend of 24-25 March 2007 because, according to Mrs Brazil, Ms Alexander had a wedding to attend and she, Mrs Brazil, had a fifth birthday party for her daughter on Sunday, 25 March, the day before her parents went on holidays.[12]
[12]Transcript 2.84.45.
Mr and Mrs Greenhalgh go on Holidays
Mr and Mrs Greenhalgh left on a car driving holiday on 26 March 2007 returning on 8 May 2007, a period of six weeks.[13] It was not in dispute that Mr Greenhalgh gave Ms Alexander his mobile number as a contact point and that he did not give her the keys to McIntyre Street which she was to pick up from his daughter, Michelle Brazil.[14]
[13]Transcript 2.65.18 – 25.
[14]Transcript 1.90.1 – 15, 2.65.30 – 45.
Open House 1 April 2007
Ms Alexander gave evidence that when she came to organise the open house for the 1 April, the first one subsequent to the Greenhalghs’ departure, she was unable to gain access to the shed, or the security gates to the pool area, which latter area was, in her view, the main selling point of the house. Further, she said she was shocked when she walked underneath the house and found a couple of shirts hanging over the pool fence and, underneath the house, 14 or 15 towels hanging on lines. The latter meant any person inspecting the area would have had to walk underneath the towels to view the room underneath the house. She said she was shocked as this was in contrast to the upstairs section of the house which was clean and fine for the presentation.[15] Ms Alexander said she rang Michelle Brazil and asked her if she had any keys to the shed and pool area to which Michelle replied, “No,” saying she didn’t know why her parents hadn’t given them to her.[16]
[15]Transcript 1.90.55 – 60, 1.91.1 – 15.
[16]Transcript 1.91.15.
Mrs Brazil’s evidence was contrary to Ms Alexander’s account. She said she dropped the keys to her parents home into Ms Alexander’s office on Friday, 30 April 2007 prior to the Sunday, 1 April 2007 open house. When she and her husband returned to Mackay on Sunday, she found the keys on the barbeque at McIntyre Street with a note from Ms Alexander saying, “Great open house, three people through.” She said Ms Alexander never raised with her any issue of the keys for the pool or the shed.[17] Further, Mrs Brazil and both her parents all gave evidence that the keys, which Ms Alexander said she had no access to, were on a key rack in the house which rack had been in the same position since they acquired the house four years earlier, and relevantly, had been there for every open house inspection conducted by Ms. Alexander prior to 1 April 2007.[18]
[17]Transcript 2.86.5 – 15.
[18]Transcript 2.50 - 51, 2.83 – 2.84, 2.95 – 96.
As to the towels hanging under the house, Mrs Greenhalgh explained that her granddaughter’s pool party had been held on the day before they left on holidays, Sunday 25 March 2007, and that she had done some further washing which she thought Michelle would pop around and fold up.[19]
[19]Transcript 2.96.25.
I accept the evidence of the defendants in preference to that of Ms Alexander on the issue of access to the pool area and the shed. I find that the keys were at all times available by contact with Mrs Brazil withstanding Ms Alexander’s evidence that she had never seen them before. Importantly though, even on Ms Alexander’s account of events, any lack of access and the hanging washing did not seem to impact on the open house because the potential purchasers, a young couple from Cairns, inspected on that day and despite not having access to the shed and pool area, put in a verbal offer subsequent to the open house.[20]
[20]Transcript 1.91.20.
First Offer for McIntyre Street
I must confess to some difficulty in following Ms Alexander’s evidence on this offer. She said initially that this offer was for $425,000, but later, that those same purchasers put in an initial offer of $410,000 verbally on Saturday, 31 March 2007, the evening before the Sunday 1 April open house which offer was put in writing on 3 April 2007.[21] She said she had been trying to contact Mr Greenhalgh between Saturday evening 31 March 2007 and Wednesday, 4 April 2007. When she finally did contact him on 4 April he rejected the offer Ms Alexander conceded she knew that it would be rejected given his declared need to clear $425,000.[22]
[21]Transcript page 2.9 – 11.
[22]Transcript 2.12.15 – 40.
Second Offer for McIntyre Street
The same purchasers then increased the $410,000 offer to $425,000 which was a verbal offer only. The purchasers declined to sign a contract for that figure because they wanted to wait to seek legal advice about the Foreign Investment Review Board.[23] That oral offer was made on 5 April 2007 and not accepted by Mr Greenhalgh.[24] There is some doubt also whether that offer was for $420,000 or $425,000.[25] Nothing turns on it.
[23]Transcript 2.14.
[24]Exhibit 16.
[25]Transcript 1.92.48.
Third Offer on McIntyre Street
It is not clear to me from the evidence of Ms Alexander whether this third offer from the same purchasers was $430,000 or $435,000.[26] Mr Greenhalgh’s evidence was that it was $430,000[27] and that is what is pleaded and relied upon by the plaintiff and so I proceed on that basis. In any event Ms. Alexander telephoned Mr Greenhalgh on 12 April and told him of the offer. The offer was not in writing.[28] She asked him whether he would sign a contract at that figure if she could get Mike Althaus, the principal of ATK, to go halves in the commission. At this point Ms Alexander knew, but Mr and Mrs Greenhalgh did not, that the plaintiff and her husband, through their company Biddington Pty Ltd (Biddington), had indicated they would buy the Scott Street property from Mr and Mrs Brazil. That was the incentive to offer reduced commission. To secure a sale of McIntyre Street coupled with the Biddington purchase of Scott Street, would allow finalisation of the Raleigh Street transaction.
[26]Transcript 1.94.45, 1.95.
[27]Transcript 2.57.25.
[28]Transcript 2.18.50.
As I understand her evidence, Ms Alexander had by then telephoned Mr Althaus and obtained his approval to cut the commission in half. She said Mr Greenhalgh’s response was that he and his wife would not sign a contract at that figure even if the commission was halved. Ms Alexander said she then asked him would he sign a contract if she got him his asking price to which he replied, “No, my wife decided she doesn’t want to live in the shed.” To which Ms Alexander replied, “So you mean to tell me that even if I get the asking price, you will not sign the contract?” To which Mr Greenhalgh said, “No.” According to her Mr Greenhalgh then said, “Tell the young fellow to come back in a month’s time and I will sell him my house.”[29] That would have taken any sale contract on McIntyre Street beyond the 27 April 2007 deadline in the Raleigh Street contract.
[29]Transcript 1.95.1 – 20.
Mr Greenhalgh’s recollection of that 12 April conversation was that Ms Alexander told him that she had managed to get the purchasers’ offer up to $430,000 which would mean if she dropped her commission, he would clear $425,000. She asked if he would accept that and he replied, “More than ever it has to be in writing.” He said he was seeking protection on the issue of commission and, as was his position from the outset, he wanted the offer to be put in writing. He said that if that had been achieved he would have signed a contract which would have secured the nett figure of $425,000 clear which he needed. He rejected any suggestion that he ever indicated to Ms Alexander that he would not sign a contract at his full price and said he told her he still wanted to buy the Raleigh Street property. As to the statement imputed to him that his wife no longer wanted to live in the granny flat, he denied he said that. Rather what he said he told Ms Alexander was that if they did not get their money then the $25,000 for renovations would not be available and his had wife indicated to him she wouldn’t be very happy living in the granny flat in those circumstances.[30]
[30]Transcript 2.57 – 2.59.
I have no hesitation in accepting the evidence of Mr Greenhalgh in preference to that of Ms Alexander. I find that at no stage did Mr Greenhalgh in that telephone conversation indicate that he would not sign a contract even at his asking price or that he ever told Ms Alexander that his wife had changed her mind about living in the granny flat. On the contrary, I find he indicated to Ms Alexander that he and his wife were still keen to proceed with the acquisition of Raleigh Street.
I should mention two documents relied upon by the plaintiff as supporting the evidence of Ms Alexander I have rejected, that Mr Greenhalgh told her he would not sign contract even at his asking price. Both are said to be evidence of the above telephone discussion taking place on 10 April for which the plaintiff contends and of Ms Alexander’s version of the content of that conversation. [31]
[31]Plaintiff’s Chronology, Paragraph 19; submissions paras 56.8, 56.9
The plaintiff says in support of 10 April says it preceded the sending by Mr Rickards of an email to Mr Greenhalgh’s solicitor on 10 April. This is the first of the two documents above referred to. It read:
“Hi Jenny, we are concerned that your client Charles Greenhalgh may not be making a reasonable attempt to satisfy Special Condition 1 of our contract.
Please advise us of their intentions in this regard without delay.”[32]
[32]Exhibit 2; see also exhibit 16
It was put to Ms Alexander in cross-examination that the conversation took place on 10 April but she said it was later around the 13th or 14th.[33] She later narrowed that down to the day before she went to see Michelle Brazil which was on 13 April 2007 which dated the telephone conversation to 12 April 2007.[34]
[33]Transcript, 2.18.30-50
[34]Transcript, 2.30.10
Apart from that evidence supporting the conversation having occurred on 12 April, I consider the text of Mr Rickards’s 10 April email is more consistent with that than it having occurred on 12 April. Had Ms Alexander told Mr Rickards on 10 April of the alleged statement by Mr Greenhalgh, that he would not sign even at his asking price, one would have thought that his email would have been in stronger language than it was. It seems to me the email is more consistent with Mr Rickards having been told by Ms Alexander of the rejection of the first two offers which may have caused him some concern but not such concern as would have been generated by knowing that Mr Greenhalgh had decided not to sell his property. I consider that explains the moderate language of his email.
The second document relied upon by the plaintiff is an email from Ms Alexander to Mr Rickards, sent at his request, on 18 April.[35] It purported to set out a chronology of events surrounding attempts to sell McIntyre and Scott Streets. It is presently relevant for two reasons. Firstly, it recorded the above conversation as having occurred on 10 April. Secondly it is said to be corroborative of the statement by Mr Greenhalgh that he would not sign at his asking price which statement I have found was never made by him. I mention it only because of the usual importance of contemporary written documents giving support to oral statements in assisting in evidentiary findings. I am satisfied that the document recorded what Ms Alexander reported to Mr Rickards but that does not alter my finding that the relevant statement therein attributed to Mr Greenhalgh was never made. I am satisfied the conversation took place on 12 April and not 10 April.
[35]Exhibit 16
Subsequent to that conversation on 12 April, and despite the fact that the newspaper advertisements were still running, Ms Alexander conducted no further open houses on McIntyre Street. She gave her reasons as: the fact that she had spent a lot of money already; that she wasn’t going to a property that wasn’t properly presented; or to one which she could only get half or part access; or try to get someone to buy when the owner had told her he wouldn’t sell.[36]
[36]Transcript 1.95.48 – 55.
Ms Alexander thereafter continued trying to sell the property but ceased having open houses.[37] Of course it was for her as the agent to market the property as she saw fit subject, of course to any specific instructions from her principals which weren’t given. I accept that she continued to try to sell the property despite the impression formed by Mrs Greenhalgh from the phone calls from Ms. Alexander and the way she spoke that she had wiped her and her husband.[38] Of course it was Mr Greenhalgh who had all the substantive conversations with Ms Alexander.
[37]Transcript 2.26.28.
[38]Transcript 2.102.1-10
Something was sought to be made by the plaintiff of the fact that, after the abovementioned telephone conversation of 12 April, Mr Greenhalgh did not thereafter actively pursue Ms Alexander to obtain a sale of the property. I see no obligation on the part of a principal who has appointed a real estate agent to sell his property, to continually contact the agent unless there is information required of him by the agent to assist in the sale or the circumstances otherwise demand it to allow the agent to fulfil his/her role as agent. I venture to say that continual contact of the agent outside those circumstances may well be seen by an agent to be tiresome and counter productive. I accept Mr Greenhalgh’s evidence that as far as he and his wife are concerned the sale of McIntyre Street was in the hands of his agent who could have contacted him with any serious written offers. I see nothing in this argument.
I found both Mr and Mrs Greenhalgh honest and reliable witnesses. Mr Greenhalgh presented as a cautious, measured and astute man evidenced, in part, by his requirement that any offer be in writing and not deviating from the Nett proceeds figure he required to make the Raleigh Street acquisition viable. Having said that, it is not difficult to understand the frustration Ms Alexander must have felt in trying to secure a sale of McIntyre Street. None of the three offers she conveyed to Mr Greenhalgh was accepted. Only one, the first low offer of $410,000, was reduced to writing. She had a personal investment in the project of $1,000 for advertising and stood to earn a sizable commission on the Raleigh Street sale. But there was nothing that I can see in Mr. & Mrs. Greenhalgh’s conduct which could be said to be unreasonable or to constitute a breach of their contractual obligation to take all reasonable steps to sell their property. None of the offers approached the $425,000 figure they needed to clear on any sale. No written offer sufficient to allow that was ever made. As I have said the only written offer ever made was the recognisably low one of $410,000 which was never going to be accepted. It was not suggested by the plaintiff that the asking price was unreasonable. On the contrary, Ms Alexander said it was reasonable. Nor was it suggested that his requirement for offers to be put in writing was unreasonable. It clearly wasn’t. None of the grounds relied upon by the plaintiff have been made out.
Scott Street
On the advice of Ms Alexander and her principal, Mr Althaus, their agents, Mr and Mrs Brazil listed their house for $419,000.[39] As at 13 April no purchaser had come forward and around that time, according to Ms Alexander she became aware that Mr and Mrs Rickards had decided that, if it looked as though there was to be a contract for the sale of McIntyre Street, then they would buy Scott Street themselves and move in until they built a house and then sell it a couple of years down the track. On their instructions she prepared a contract in the name of their company for a figure of $415,000, slightly down on the asking price of $419,000 and took the contract to Mrs Brazil at Scott Street.[40] According to Mrs Brazil, she telephoned the night before to arrange the meeting but did not disclose that the purchaser was Mr and Mrs Rickards. She simply said that she had an exciting development, namely, that an investment company had rung her and wanted to buy their house.[41]
[39]Transcript 218.25 – 35.
[40]Transcript 1.97.40.
[41]Transcript 2.87.15.
When Ms Alexander arrived the following day 13 April 2007 with the contract signed by Biddington she disclosed then that Mr and Mrs Rickards were behind Biddington. She also said that she told Mrs Brazil that she should have a talk to her parents, “Because I am really concerned that you could be in breach of contract if the sale doesn’t proceed.”[42] At that point there was not the slightest basis for the suggestion that Mr and Mrs Brazil could be said to be in breach of contract. The only offer in existence was the Biddington contract offer and it had only just been presented to Mrs Brazil to be left with her for discussion by her with her husband. This was not the first sign of Ms. Alexander’s frustration with Mrs. Brazil’s parents. According to Mrs Brazil, during the period her parents were on holidays, Ms Alexander had expressed to her the latter’s increasing frustration with them and had rung Mrs Brazil on a couple of occasions expressing concern that Mr Greenhalgh was being extremely difficult, wouldn’t negotiate on price, and wouldn’t be reasonable.[43] Mrs Brazil agreed that at one point she said she was flabbergasted at her father’s behaviour but that was because she understood Ms Alexander to be saying that her father would not move from his asking price of $445,000. I have already found that was never said by him.
[42]Transcript 1.97.45.
[43]Transcript 2.36.55-60; 2.37.1-10; 2.86.28-55
Returning to the 13 April 2007 meeting when Ms Alexander dropped the Biddington contract into her, according to Mrs Brazil, she asked Ms Alexander why she had not disclosed the evening before that the Rickards were behind Biddington. She said Ms Alexander replied, “They didn’t want you to know.”[44] In the course of the discussion, according to Mrs Brazil, Ms Alexander said to her – ‘I must let you know if this doesn’t happen, if you can’t make this happen – Dave is so furious. He has had to kick out his tenants. He’s furious with your father. He thinks he has cost him about $20,000 and if this doesn’t all come together they will sue them. Not you, because they like you.”[45] Ms Alexander denied she said Mrs Brazil’s parents could be sued. According to her she said only that they could be in breach of contract. But when one considers the situation in context, I prefer the evidence of Mrs Brazil.
[44]Transcript 2.88.28.
[45]Transcript 2.89.10.
The context I refer to is this. At that point Ms Alexander, endeavouring to perform her duties as agent for all parties and standing to personally earn $30,240,[46] [70% of $42,000 on the three sales], would have had ample reason, through Mrs Brazil, to seek to exert some pressure on all defendants to sign contracts of sale on their properties. She would have known that if she could obtain the assistance of Mrs Brazil in persuading her father to be, in Ms Alexander’s eyes, more reasonable on the sale of McIntyre Street, and if the Biddington contract on Scott Street was signed by the Brazils, the Raleigh Street sale could proceed to finalisation.
[46]Transcript 2.42.1.
That brings me to the next point and that is the Biddington contract. It was left by Ms Alexander with Mrs Brazil for Mr Brazil to read. The contract was unconditional in that it did not provide a condition which made its finalisation dependent on the sale of McIntyre Street. In other words, in the absence of such a condition, had Mr and Mrs Brazil signed that contract they would have been committed to sell to Biddington irrespective of the outcome of the Raleigh Street sale contract. It wasn’t as though Mr and Mrs Rickards considered the Biddington contract conditional upon the completion of the Raleigh Street sale. On the contrary, the plaintiff made it clear that she and her husband would have proceeded with the acquisition of Scott Street as an investment property even if the Raleigh Street sale did not proceed.[47] The fact that no contract containing the abovementioned clause was ever submitted by Ms Alexander on behalf of Mr & Mrs Rickards/Biddington is consistent with that declared position of Mrs Rickards. Had a contract been present with such a clause, I am satisfied the Brazils would have signed it.[48]
[47]Transcript 1.58.55, 1.59.1 – 5.
[48]Transcript 2.107.30
Mr Brazil’s expressed concern was both reasonable and realistic. In the result Mr and Mrs Brazil declined to sign it for that very reason that Mr Brazil was concerned that he could be left without a roof over his head.[49] I reject the evidence of Ms Alexander[50] that Mr Brazil said that he would not sign the contract because he could not live with is parents-in-law in view of their conduct over the sale of McIntyre Street and that he said he was withdrawing Scott Street from the market.[51]
[49]Transcript 2.105.55-60
[50]Transcript 1.98.25-35
[51]Transcript 1.98.55
I found Mr and Mrs Brazil to be honest and reliable witnesses and I prefer their evidence to that of Ms Alexander where there is conflict. As I have found in relation to Mr. & Mrs. Greenhalgh, I find nothing in the conduct of Mr and Mrs Brazil to justify the allegation that they were in breach of the special condition.
My view of all the evidence is that, despite the endeavours of Ms Alexander to find purchasers for the McIntyre Street and Scott Street properties at prices and on terms which, consistent with their obligations to take all reasonable steps under the Special Condition, the respective defendants would have been obliged to accept., the reality was that no such purchasers were to be found. That did not result from any failure of the defendants to take all reasonable steps to achieve a sale anymore than from any fault on the part of Ms Alexander in her marketing endeavours. It seems to me that she did her level best to find purchasers in a market which simply did not present them.
Purported Repudiation of Raleigh Street Contract by Plaintiff
As the McIntyre and Scott Street properties had not sold by 27 April 2007 as required by the special condition in the Raleigh Street sale contract, the defendants’ solicitors wrote to the plaintiff by letter dated 27 April advising that the contract was at an end and seeking a refund of the deposit.[52] The plaintiff’s solicitors replied by letter dated 4 May 2007[53] advising that the defendants had not used their reasonable endeavours to fulfil condition 1 which manifested an unwillingness to perform the contract constituting a repudiation of it and that the letter of 27 April seeing a return of the deposit constituted a further repudiation of the contract. By that letter the plaintiff then purported to accept the alleged repudiation and bring the contract to an end.
[52]Exhibit 20.
[53]Exhibit 18.
The plaintiff has failed to establish that there was any breach of the special condition by any of the defendants. I find that the defendants took all reasonable steps to satisfy the special condition. I accordingly find that the Raleigh Street contract came to an end at midnight on 27 April 2007 by virtue of the absence of unconditional contracts for the sale of McIntyre Street and Scott Street properties and when the defendants in writing on that day evinced an intention to rely on the non-fulfilment of the special condition to bring the contract to an end and recover their deposits.[54] The plaintiff’s purported termination on the basis of the acceptance of a purported repudiation by the defendants was invalid. The defendants are entitled to the return of the $1,000 deposit.
[54]Compare Perri v Coolangatta Investments Pty Ltd [1982] 41 ALR 441 at 457 – 458 per Wilson J.
I make the following orders:
(a) The plaintiff’s claim is dismissed;
[b] Judgment for the defendants on their counterclaim in the sum of $1,000 together with interest at 10% from 28 April 2007 until judgment.
On the issue of costs, subject to any written submissions which may persuade me to the contrary, the defendants are entitled to their costs on a standard basis. All parties shall be at liberty to make written submissions on costs within seven days failing which there will be an order that the plaintiff pay the defendants’ costs on a standard basis.
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