Roberts v Juniper

[2012] QDC 140

DISTRICT COURT OF QUEENSLAND

CITATION:

Roberts v Juniper [2012] QDC 140

PARTIES:

JOHN HARRIS ROBERTS and NGAIRE JEAN ROBERTS
(Plaintiffs)

v

SCOTT CHRISTIAN JUNIPER
(Defendant)

FILE NO/S:

303/2009

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

14 June 2012

DELIVERED AT:

Maroochydore

HEARING DATE:

26 and 27 September 2011

JUDGE:

Long SC, DCJ

ORDER:

The defendant pay the plaintiffs the sum of $144,999.42 (including interest to the date of judgment).

CATCHWORDS:

DAMAGES – GENERAL PRINCIPLES – RECOVERY FOR REINSTATEMENT – OBLIGATIONS TO MAINTAIN REAL PROPERTY – where the defendant has breached obligations not to alter and to maintain real property prior to settlement and termination of contract of sale – where there has been a diminution in value of the property as a result of the alterations and lack of maintenance by the defendant – where damages are prima facie awarded on a reinstatement basis. 

EQUITY – GENERAL PRINCIPLES - UNJUST ENRICHMENT - where the defendant had lawfully terminated a contract to purchase a residential property for failure of compliance with statutory obligations – where the defendant has obtained a significant benefit of the use and occupation of the property, prior to the termination of the contract – where there has been a total failure of consideration for the plaintiffs

RESTITUTION – RESTITUTITION RESULTING FROM UNENFORCEABLE, INCOMPLETE, ILLEGAL or VOID CONTRACTS – RECOMPENSE FOR USE AND OCCUPATION OF REAL PROPERTY – GENERAL PRINCIPLES – where the defendant had lawfully terminated a contract to purchase a residential property for failure of compliance with statutory obligations – where the defendant has obtained a significant benefit of the use and occupation of the property, prior to the termination of the contract – where there has been a total failure of consideration for the plaintiffs

LEGISLATION:

Property Agents and Motor Dealers Act 2000, s 367.

CASES:

Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662.

Bellgrove v Eldridge (1954) 90 CLR 613.

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64.

David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 109 ALR 57.

Doubikin Holdings v Grail Pty Ltd (1991) 5 WAR, 563.

Ethnic Earth Pty Ltd v Quoin Technology Pty Ltd (receivers and managers appointed) (in liq)(No. 3) [2006] SASC 7.

Hodder v Watters [1946] VLR 222.

Landers v Schmidt [1983] 1 Qd R 188.

McDonald v Dennys LascellesLtd (1933) 48 CLR 457.

Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221.

Spangaro v Corporate Investment Australia Funds Management Ltd [2003] FCA 1025.

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272.

COUNSEL:

D.B. Fraser QC on behalf of the plaintiffs.

A. Sinclair on behalf of the defendant.

SOLICITORS:

JHL Lawyers on behalf of the plaintiffs.

Brandon & Gullo Lawyers on behalf of the defendant. 

Introduction

1. In this action the plaintiffs claim:

(a)        Damages for breach of contract; and

(b)        Recompense for use and occupation of real…