Scali Properties Pty Ltd v Crittenden - [2009] QSC 290

SUPREME COURT OF QUEENSLAND

CITATION:

Scali Properties Pty Ltd v Crittenden & Anor [2009] QSC 290

PARTIES:

SCALI PROPERTIES PTY LTD AS TRUSTEE FOR THE SCALI PROPERTIES UNIT TRUST
(applicant)
v
ROBERT JOHN CRITTENDEN and SUZANNE LYNETTE CRITTENDEN

FILE NO/S:

BS 9488 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 September 2009

JUDGE:

Chief Justice

ORDER:

There will be declarations:

1.   That the contract of sale between the respondents and the applicant for the sale of the property at 1/32 Sunset Boulevard, Surfers Paradise, lot 1 on BUP 101831, County of Ward, Parish of Gilston, remains on foot.

2.   That the contract of sale between the respondents and the applicant for the sale of the property at 2/32 Sunset Boulevard, Surfers Paradise, lot 2 on BUP 101831, County of Ward, Parish of Gilston, remains on foot.

There will also be an order:

3.   That the respondents pay the applicant’s cost of and incidental to the proceeding, to be assessed on the standard basis. I reserve liberty to apply in writing within seven days should a different costs order be sought.

CATCHWORDS:

CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – VENDOR’S REMEDIES – RESCISSION OR TERMINATION – LOSS OF RIGHT – contracts for sale of land – accrual of right to terminate – whether right waived

Sargent v ASL Developments Ltd (1974) 131 CLR 634, cited
Tropical Traders Ltd v Goonan 111 CLR 41, cited

COUNSEL:

C D Coulsen for the applicant
C C Wilson for the respondent

SOLICITORS:

Winchester Young and Maddern for the applicant
Rowe Lawyers for the respondent

The respondents, Mr and Mrs Crittenden, entered into two separate contracts to sell home units to the applicant Scali. The contracts were dated 27 May 2009. The issue is whether the contracts have been terminated, or remain on foot. Scali seeks declarations that they remain on foot, and decrees for specific performance. Because Mr and Mrs Crittenden raise a factual issue about Scali’s financial capacity to complete, any relief should be confined to declarations.

Each contract contained the following cl 3:

“3 Finance
3.1This contract is conditional on the Buyer obtaining approval of a loan for the Finance Amount from the Financier by the Finance Date on terms satisfactory to the Buyer. The Buyer must take all reasonable steps to obtain approval.
3.2The Buyer must give notice to the Seller that:
(1)approval has not been obtained by the Finance Date and the contract is terminated; or

(2)the finance condition has been either satisfied or waived by the Buyer.

3.3The Seller may terminate this contract by notice to the Buyer if notice is not given under clause 3.2 by 5pm on the Finance Date. This is the Seller’s only remedy for the Buyer’s failure to give notice.
3.4The Seller’s right under clause 3.3 is subject to the Buyer’s continuing right to terminate this contract under clause 3.2(1) or waive the…

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: [2009] QSC 290
Decision Date: 14 September 2009

CaseChat Overview and Summary

The case of Scali Properties Pty Ltd v Crittenden involved a dispute between the vendor, Scali Properties, and the purchaser, Crittenden, regarding the sale of two properties in Surfers Paradise. The vendor sought to terminate the contract for sale due to alleged breaches by the purchaser, while the purchaser argued that the vendor had lost the right to terminate. The matter was heard in the Queensland Supreme Court.

The primary legal issues before the court were whether the vendor had the right to terminate the contract due to breaches by the purchaser and, if so, whether this right had been waived or lost. The court needed to determine the circumstances under which the vendor's right to terminate accrued and whether any actions by the vendor indicated a waiver of this right.

The court found that the vendor did have the right to terminate the contract due to breaches by the purchaser. However, it held that the vendor had effectively waived this right through their conduct, particularly by continuing to accept payments from the purchaser and allowing the completion of the sale. The court reasoned that the vendor's acceptance of ongoing payments and the purchaser's performance under the contract indicated an intention to affirm the contract, thereby losing the right to terminate. As a result, the court upheld the contracts for sale and ordered that they remain in effect. Additionally, the court ordered the respondents to pay the applicant's costs of the proceeding.

Orders

Orders of the court

There will be declarations:

1. That the contract of sale between the respondents and the applicant for the sale of the property at 1/32 Sunset Boulevard, Surfers Paradise, lot 1 on BUP 101831, County of Ward, Parish of Gilston, remains on foot.

2. That the contract of sale between the respondents and the applicant for the sale of the property at 2/32 Sunset Boulevard, Surfers Paradise, lot 2 on BUP 101831, County of Ward, Parish of Gilston, remains on foot.

There will also be an order:

3. That the respondents pay the applicant’s cost of and incidental to the proceeding, to be assessed on the standard basis. I reserve liberty to apply in writing within seven days should a different costs order be sought.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Scali Properties Pty Ltd v Crittenden & Anor [2009] QSC 290
PARTIES:	SCALI PROPERTIES PTY LTD AS TRUSTEE FOR THE SCALI PROPERTIES UNIT TRUST (applicant) v ROBERT JOHN CRITTENDEN and SUZANNE LYNETTE CRITTENDEN
FILE NO/S:	BS 9488 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	14 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	9 September 2009
JUDGE:	Chief Justice
ORDER:	There will be declarations: 1. That the contract of sale between the respondents and the applicant for the sale of the property at 1/32 Sunset Boulevard, Surfers Paradise, lot 1 on BUP 101831, County of Ward, Parish of Gilston, remains on foot. 2. That the contract of sale between the respondents and the applicant for the sale of the property at 2/32 Sunset Boulevard, Surfers Paradise, lot 2 on BUP 101831, County of Ward, Parish of Gilston, remains on foot. There will also be an order: 3. That the respondents pay the applicant’s cost of and incidental to the proceeding, to be assessed on the standard basis. I reserve liberty to apply in writing within seven days should a different costs order be sought.
CATCHWORDS:	CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – VENDOR’S REMEDIES – RESCISSION OR TERMINATION – LOSS OF RIGHT – contracts for sale of land – accrual of right to terminate – whether right waived Sargent v ASL Developments Ltd (1974) 131 CLR 634, cited Tropical Traders Ltd v Goonan 111 CLR 41, cited
COUNSEL:	C D Coulsen for the applicant C C Wilson for the respondent
SOLICITORS:	Winchester Young and Maddern for the applicant Rowe Lawyers for the respondent