S.C.N. Pty Ltd v Smith

Case [2006] QCA 360

SUPREME COURT OF QUEENSLAND

CITATION:

S.C.N. Pty Ltd v Smith [2006] QCA 360

PARTIES:

S.C.N. PTY LTD ACN 083 231 387
AS TRUSTEE FOR THE CS FAMILY TRUST
(plaintiff/respondent)
v
GRAHAM JOHN SMITH
AS TRUSTEE UNDER INSTRUMENT NO 704766310
(defendant/appellant)

FILE NO/S:

Appeal No 6215 of 2006
SC No 10964 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 September 2006

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2006

JUDGES:

McPherson and Keane JJA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed 1.   

Appellant to pay the respondent's costs of the appeal2.   

CATCHWORDS:

INTERPRETATION - GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS - GIVING EFFECT TO MANIFEST INTENTION -  appellant agreed to sell rural land to respondent for redevelopment by respondent as commercial land - appellant purported to terminate contract because respondent failed to comply with special condition of contract relating to development approval - respondent commenced action for specific performance - trial judge made order for specific performance in favour of respondent - interpretation of special condition added to standard REIQ form - use of extrinsic materials - expressio unius est exclusio alterius - whether the respondent's failure to lodge an application for operational works approval afforded the appellant the right to terminate contract under special condition

CONTRACTS - PARTICULAR PARTIES - PRINCIPAL AND AGENT - IN GENERAL - special condition required respondent to "keep" appellant "fully informed of the progress" of applications made to local authority - appellant's real estate agent was given authority to communicate with officers of respondent for some purposes - duty of agent to pass to the appellant information relating to respondent's ability to complete contract - meaning of "sale" of land - whether real estate agent was appellant's agent for purpose of special condition and whether appellant waived entitlement to be kept informed

Integrated Planning Act 1997 (Qld), s 1.3.2, s 1.3.5, s 3.2.1,
s 3.2.3

Anderson v Densely (1953) 90 CLR 460, considered
Austin v Bonney [1999] 1 Qd R 114, cited
Blackley v National Mutual Life Association of Australasia Ltd [1972] NZLR 1038, considered
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, cited
Commonwealth v Verwayen (1990) 170 CLR 394, cited
El Ajou v Dollar Holdings plc [1994] 2 All ER 685, cited
Fairmease Pty Ltd v Von Pein [2004] QSC 220, cited
Finance Corporation of Australia Ltd v Commissioner of Stamp Duties [1981] Qd R 493, cited
Fitzgerald v Metcalf [1917] NZLR 486, considered
Freshmark Limited v Mercantile Mutual Insurance (Australia) Limited [1994] 2 Qd R 390, cited
Gange v Sullivan (1966) 116 CLR 418, cited
Havenbar Pty Ltd v Butterfield (1974) 133 CLR 449, cited
James v Smith [1931] 2 KB 317n, cited
Koikas v Green Park Construction Pty Ltd [1970] VR 142, cited
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Details
AGLC
S.C.N. Pty Ltd v Smith [2006] QCA 360
Case
[2006] QCA 360
Decision Date

CaseChat Overview and Summary

S.C.N. Pty Ltd, the appellant, sought to terminate a contract with the respondent, Smith, for the sale of rural land intended for redevelopment as commercial property. The respondent had failed to comply with a special condition in the contract relating to obtaining development approval. Smith commenced an action for specific performance, and the trial judge ordered specific performance in his favour. The appellant appealed, arguing that the respondent's failure to obtain operational works approval provided grounds for termination under the special condition. The court also had to determine the extent of the appellant's real estate agent's authority to communicate with the respondent and whether the appellant had waived their right to be kept informed of the respondent's progress.

The court considered whether the special condition in the contract was ambiguous and required interpretation, and if so, whether the special condition was ambiguous. The court examined whether the failure to obtain operational works approval constituted a breach of the special condition. The court also assessed the extent of the real estate agent's authority to communicate with the respondent and whether the appellant had waived their right to be kept informed. The court examined the use of extrinsic materials and the application of the principle expressio unius est exclusio alterius. The court considered relevant authorities on the interpretation of contracts, the duties of agents, and the meaning of "sale" of land.

The court found that the special condition was not ambiguous and that the failure to obtain operational works approval did not constitute a breach of the condition. The court held that the real estate agent did not have the authority to communicate with the respondent for the purposes of the special condition, and that the appellant had not waived their right to be kept informed. The court held that the respondent's failure to obtain operational works approval did not afford the appellant the right to terminate the contract under the special condition. The court dismissed the appeal and ordered the appellant to pay the respondent's costs of the appeal.

Orders

Orders of the court

Appeal dismissed 1.

Appellant to pay the respondent's costs of the appeal2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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