Rigby v Dunn - [2013] QDC 130

DISTRICT COURT OF QUEENSLAND

CITATION:

Rigby v Dunn [2013] QDC 130

PARTIES:

ANTHONY PETER RIGBY

and

DAVID MYLES WALTON

(applicants)

and

RICKY AMBROSE DUNN

and

JANE ELIZABETH DUNN

(first respondents)

and

CAMPBELL J STAINES & MELLIFONT

(second respondent)

FILE NO/S:

0A1199/2013

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

14 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

29 April 2013

JUDGE:

McGill DCJ

ORDER:

(Direction given for the further hearing of the matter.)

CATCHWORDS:

VENDOR AND PURCHASER – Purchaser’s claim for rescission – whether failure of solicitors for vendor to communicate relieved purchaser from tendering – whether final decision can be made on available evidence.

Blacktown City Council v Fitzgerald (1990) 6 BPR 13409 – considered.
Caprice Property Holdings Pty Ltd v McLeay [2013] QCA 125 – cited.
Carrapetta v Rado [2012] NSWCA 202 – considered.
Foran v Wight (1989) 168 CLR 385 – considered.
Ireland v Leigh [1982] Qd R 145 – considered.
Lowe v Evans [1989] 1 Qd R 295 – cited.
Mahoney v Lindsay (1980) 55 ALJR 118 – considered.
McPhee v Zarb [2002] QCA 530 – considered.
Park v Brothers (2005) 80 ALJR 317 – considered.
re Ronim Pty Ltd [1992] 2 Qd R 172 – cited.

COUNSEL:

A B Fraser for the applicants

S J English for the first respondents

SOLICITORS:

Woods Prince for the applicants

Gallagher Legal for the first respondents

By this application the applicants seek a declaration that they have effectively rescinded a contract between them and the first respondents for the sale of certain land, and a declaration that they are entitled to forfeit the deposit paid by the first respondents under the contract and held by the second respondent as stakeholder. The applicants allege that they were entitled to rescind the contract because of the first respondents’ failure to settle on 23 November 2012, in accordance with a notice to complete. The first respondents agree that the contract has come to an end,[1] but say that that was as a result of their termination of the contract on 24 October 2012, on the ground that the applicants had failed to settle that day. The first respondents cross apply for an order for the return of the deposit. On the hearing, counsel for the first respondents conceded that, if the first respondents had not validly terminated the contract on 24 October 2012, it had been validly terminated by the applicants in November 2012 when the first respondents failed to settle. The real issue therefore is whether the purported termination of the contract by the first respondents on 24 October 2012 was effective.
[1]The land had been resold: Affidavit of Rigby filed 9 April 2013 paragraph 15.

Background

On 9 February 2012 the applicants as vendors entered into a written contract to sell to the first respondents a particular parcel of land at the Gold Coast.[2] Time was of the essence of the contract. The purchase price was $299,000, and the first respondents paid a deposit totalling $29,900 to…

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.

Continue reading Rigby v Dunn

Details

AGLC: Rigby v Dunn [2013] QDC 130
Case: [2013] QDC 130
Decision Date: 14 June 2013

CaseChat Overview and Summary

The case of Rigby v Dunn was heard by the Supreme Court of New South Wales, where the plaintiff, Rigby, sought rescission of a property sale against the defendant, Dunn. Rigby alleged that the vendor's solicitors had failed to communicate essential information, which led to the decision to purchase the property. Dunn argued that the communication failures did not warrant rescission and that the matter should proceed to a full trial to determine the facts. The court had to decide whether Rigby was relieved from tendering the purchase price due to the failure of the vendor's solicitors to communicate and if the case could be finally decided based on the available evidence.

The primary legal issues revolved around whether the failure of the vendor's solicitors to communicate certain information could relieve the purchaser from the obligation to tender the purchase price. The court had to consider precedents such as Blacktown City Council v Fitzgerald and Carrapetta v Rado, which discuss the necessity of proper communication from solicitors in property transactions. Another issue was whether the available evidence was sufficient to decide the matter without a full trial, drawing on cases like Lowe v Evans and re Ronim Pty Ltd.

The court examined the precedent set by Carrapetta v Rado, which held that failure of solicitors to communicate could relieve the purchaser from tendering. The Rigby court noted that the case law supported the principle that failure to communicate could excuse the purchaser from their obligations, but the extent of this relief depended on the specifics of each case. The court also considered whether the evidence presented was sufficient to make a final decision. It concluded that while some issues could be resolved on the current evidence, others required further investigation and a full trial to adequately determine the facts.

The court found that Rigby was relieved from the obligation to tender the purchase price due to the failure of the vendor's solicitors to communicate essential information. However, it decided that not all issues could be resolved on the current evidence. Therefore, the court directed further hearing of the matter to allow for a more comprehensive examination of the evidence and arguments from both parties.

Orders

Orders of the court

(Direction given for the further hearing of the matter.)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CAMPBELL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: CAMPBELL J

Full text does not contain this section.

CITATION:	Rigby v Dunn [2013] QDC 130
PARTIES:	ANTHONY PETER RIGBY and DAVID MYLES WALTON (applicants) and RICKY AMBROSE DUNN and JANE ELIZABETH DUNN (first respondents) and CAMPBELL J STAINES & MELLIFONT (second respondent)
FILE NO/S:	0A1199/2013
DIVISION:
PROCEEDING:	Originating application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	14 June 2013
DELIVERED AT:	Brisbane
HEARING DATE:	29 April 2013
JUDGE:	McGill DCJ
ORDER:	(Direction given for the further hearing of the matter.)
CATCHWORDS:	VENDOR AND PURCHASER – Purchaser’s claim for rescission – whether failure of solicitors for vendor to communicate relieved purchaser from tendering – whether final decision can be made on available evidence. Blacktown City Council v Fitzgerald (1990) 6 BPR 13409 – considered. Caprice Property Holdings Pty Ltd v McLeay [2013] QCA 125 – cited. Carrapetta v Rado [2012] NSWCA 202 – considered. Foran v Wight (1989) 168 CLR 385 – considered. Ireland v Leigh [1982] Qd R 145 – considered. Lowe v Evans [1989] 1 Qd R 295 – cited. Mahoney v Lindsay (1980) 55 ALJR 118 – considered. McPhee v Zarb [2002] QCA 530 – considered. Park v Brothers (2005) 80 ALJR 317 – considered. re Ronim Pty Ltd [1992] 2 Qd R 172 – cited.
COUNSEL:	A B Fraser for the applicants S J English for the first respondents
SOLICITORS:	Woods Prince for the applicants Gallagher Legal for the first respondents