SCN Pty Ltd v Smith - [2006] QSC 161

SUPREME COURT OF QUEENSLAND

CITATION:

SCN Pty Ltd v Smith [2006] QSC 161

PARTIES:

SCN PTY LTD (ACN 028 548 340) AS TRUSTEE FOR THE CS FAMILY TRUST
(plaintiff)
v
GRAHAM JOHN SMITH AS TRUSTEE UNDER INSTRUMENT NO 704766310
(defendant)

FILE NO:

10964 of 2005

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

29 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

7-9 June 2006

JUDGE:

Chesterman J

ORDER:

A declaration that the contract dated 29 July 2004 between the plaintiff and the defendant ought to be specifically performed and carried into execution.

CATCHWORDS:

CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER – MATTERS ARISING BETWEEN CONTRACT AND CONVEYANCE – CONDITIONS PRECEDENT AND SUBSEQUENT – CONSENTS OF THIRD PERSONS – LOCAL GOVERNMENT APPROVALS – where plaintiff contracted to purchase defendant’s land for development – condition precedent that plaintiff lodge ‘an application for material change of use application, development application and operational works’ for the property – construction – ambiguity – whether condition should be read literally or utilising surrounding circumstances of transaction - where plaintiff undertook to diligently pursue such applications and entitled to extend time for satisfaction of condition – whether plaintiff diligently performed its obligations

Integrated Planning Act 1997 (Qld), s 1.3.2, s 1.3.5, s 3.1.5, sch 10

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, applied
Elias v Forsyth [2004] QSC 338, followed
Fairmede Pty Ltd v Von Pein [2004] QSC 220, distinguished
Gollin & Co Ltd v Karenlee Nominees Pty Ltd (1983) 153 CLR 455, considered
Norco Co-operative Ltd v Parmalat Australia Ltd [2006] QSC 38, followed
Parmalat Australia Ltd v Norco Co-operative Ltd [2006] QCA 129, followed
Petersen v Moloney (1951) 84 CLR 91, distinguished

COUNSEL:

P J Dunning SC with him P D Hay for the plaintiff
A B Crowe SC with him P R Franco for the defendant

SOLICITORS:

Sunnybank Solicitors for the plaintiff
Wheldon & Associates for the defendant

The plaintiff seeks specific performance of a contract dated 29 July 2004 by w
hich it agreed to buy land described as Lot 1 on SP 108853, Lot 60 on RP 45530,

Lots 92, 93 and 94 on RP 218814, Lots 71, 89, 90 and 91 on RP 218815 and Lot 83 on RP 223843 all in the County of Stanley, Parish of Yeerongpilly (‘the land’ or ‘the contract land’) for a price of $2,000,000. The land is located at Beerinba within the boundaries of Logan City. It is undeveloped and unserviced by water, power or sewerage. To the extent the land has been used, the use was rural activity.

The plaintiff intends to develop the land into a substantial and fully serviced industrial estate. To assist in that purpose it also bought adjacent land. That land is also to become part of the industrial estate.

The contract land consists of two parcels. One is about 50 metres wide by

500 metres long. This parcel adjoins…

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 SCN Pty Ltd v Smith

Details

AGLC: SCN Pty Ltd v Smith [2006] QSC 161
Case: [2006] QSC 161
Decision Date: 29 June 2006

CaseChat Overview and Summary

SCN Pty Ltd commenced proceedings against Smith, seeking specific performance of a contract for the sale of land. The contract contained a condition precedent that the plaintiff would lodge applications for material change of use, a development application, and operational works for the property, which was intended for development. The dispute arose over whether the plaintiff had diligently pursued these applications and whether the condition should be interpreted literally or in the context of the transaction's surrounding circumstances.

The court needed to determine if the condition was ambiguous and whether the plaintiff was entitled to an extension for satisfying the condition. The court considered the obligations of both parties under the contract and whether the plaintiff had acted diligently in pursuing the necessary applications. The key issue was whether the condition precedent had been satisfied, or if the plaintiff could be granted an extension of time to meet the condition.

The court held that the condition was not ambiguous and should be interpreted in the context of the surrounding circumstances. The court found that the plaintiff had diligently pursued the applications and was entitled to an extension of time to satisfy the condition. Given this finding, the court ruled that the contract should be specifically performed and ordered that the contract dated 29 July 2004 be carried into execution. The court's decision was based on the plaintiff's diligent efforts and the absence of any impediment that would have prevented the plaintiff from meeting the condition precedent within the stipulated time.

Orders

Orders of the court

A declaration that the contract dated 29 July 2004 between the plaintiff and the defendant ought to be specifically performed and carried into execution.

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:	SCN Pty Ltd v Smith [2006] QSC 161
PARTIES:	SCN PTY LTD (ACN 028 548 340) AS TRUSTEE FOR THE CS FAMILY TRUST (plaintiff) v GRAHAM JOHN SMITH AS TRUSTEE UNDER INSTRUMENT NO 704766310 (defendant)
FILE NO:	10964 of 2005
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	29 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	7-9 June 2006
JUDGE:	Chesterman J
ORDER:	A declaration that the contract dated 29 July 2004 between the plaintiff and the defendant ought to be specifically performed and carried into execution.
CATCHWORDS:	CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER – MATTERS ARISING BETWEEN CONTRACT AND CONVEYANCE – CONDITIONS PRECEDENT AND SUBSEQUENT – CONSENTS OF THIRD PERSONS – LOCAL GOVERNMENT APPROVALS – where plaintiff contracted to purchase defendant’s land for development – condition precedent that plaintiff lodge ‘an application for material change of use application, development application and operational works’ for the property – construction – ambiguity – whether condition should be read literally or utilising surrounding circumstances of transaction - where plaintiff undertook to diligently pursue such applications and entitled to extend time for satisfaction of condition – whether plaintiff diligently performed its obligations Integrated Planning Act 1997 (Qld), s 1.3.2, s 1.3.5, s 3.1.5, sch 10 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, applied Elias v Forsyth [2004] QSC 338, followed Fairmede Pty Ltd v Von Pein [2004] QSC 220, distinguished Gollin & Co Ltd v Karenlee Nominees Pty Ltd (1983) 153 CLR 455, considered Norco Co-operative Ltd v Parmalat Australia Ltd [2006] QSC 38, followed Parmalat Australia Ltd v Norco Co-operative Ltd [2006] QCA 129, followed Petersen v Moloney (1951) 84 CLR 91, distinguished
COUNSEL:	P J Dunning SC with him P D Hay for the plaintiff A B Crowe SC with him P R Franco for the defendant
SOLICITORS:	Sunnybank Solicitors for the plaintiff Wheldon & Associates for the defendant