Seymour CBD P/L v Commonwealth Bank of Australia and Ors
[1999] QSC 101
•14 May 1999
IN THE SUPREME COURT
OF QUEENSLAND
Writ No. 939 of 1996
Brisbane
Before de Jersey CJ
[Seymour CBD P/L v. Commonwealth Bank of Australia and Ors]
BETWEEN:
SEYMOUR CBD PTY LTD (ACN 010 302 860)
Plaintiff
AND:
COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
First Defendant
AND:
MAROOCHYDORE CONVENIENCE CENTRE PTY LTD (ACN 010 640 169)
Second Defendant/Third Party
AND:
RANDALL ALEXANDER FERRIS
Third Defendant
JUDGMENT - de JERSEY CJ
Judgment delivered 14 May 1999
The plaintiff (“Seymour”) sued the first defendant (“CBA”) for $680,999.46, the amount of a cheque dated 30 January 1996 dishonoured upon presentation. It was a bank cheque for the purchase moneys due to settle an alleged contract for the sale of unit 138 in “Admiralty Towers 1", by Seymour to the second defendant Maroochydore Convenience Centre Pty Ltd (previously named Hoodbridge Pty Ltd) (“Maroochydore”). A meeting with a view to the settlement of any such contract as there was, took place on 30 January 1996. Seymour contends that settlement did then take place, that it was given the cheque, and that CBA then wrongly dishonoured it. Maroochydore, the alleged purchaser, contends that if there was a binding contract, Maroochydore validly rescinded that contract on 30 January before any settlement had been effected, so that the settlement moneys did not become payable. The ground of termination was Seymour’s inability to provide Maroochydore with agreed carparking and storage spaces. Maroochydore alternatively claims relief under the Trade Practices Act 1974. CBA joined Maroochydore as a third party, claiming that the negotiation of the cheque was, to broad effect, dependent on an effectual settlement - which did not occur, and by counter claim against Seymour, that CBA remained the true owner of that cheque. Seymour later joined Maroochydore, and its guiding director, Mr Ferris, as defendants, claiming specific performance from Maroochydore and declaratory relief against Mr Ferris in his capacity as guarantor of Maroochydore.
The rather complicated and extensive nature of the pleadings, and the multiplicity of the issues to which they apparently give rise, should not be allowed to obscure the ultimate issues in the case, which were, simply, whether there was a contract; if so, what were its terms; and whether any such contract was effectually settled. There was a related and dependent issue with relation to the cheque.
Seymour’s position is that there was a contract, in terms of the many pages following page 21 in Exhibit 1: a contract dated 10 January 1994 providing for the purchase of unit 138 for $680,000. Unit 138 is a three bedroom apartment on the twenty-third floor of the twenty-six floor building. The “car and storage spaces forming part of the lot”, in accordance with that alleged contract, are as shown on the page numbered 5 immediately following the deleted 11th schedule: car spaces elsewhere numbered 81 and 82, together with a hatched triangular area adjacent and to the left of those spaces as one looks at the plan. Settlement of that alleged contract was due on 30 January 1996. Seymour contends that prior to a purported termination of the contract by Maroochydore’s solicitor, Mr Bell of Clayton Utz, all documents necessary to complete the transaction had been presented in exchange for the bank cheque. In other words, there was a binding contract in that form, it was completed, and Seymour was consequently entitled to be paid the amount of the bank cheque.
On the other hand, Maroochydore raises two alternate positions. Its primary position is that there was a contract, but on the terms set out in its letter dated 23 December 1993 to Seymour’s marketing agent, L J Hooker, and its letter of the same date to Seymour’s solicitors, Stubbs Barbeler Grant. Those documents are at pages 12-15 of Exhibit 1.
Compliance with those terms would involve, in addition to providing as car space the hatched areas designated in the contract for which Seymour contends, the construction of a storage area to the right of spaces 81 and 82, actually sited between space 82 and spaces 89A and 90A. All of that was provided for in the following terms:
“(b)the developer will construct a storage area, with solid walls, to the reasonable requirements of the purchaser, between carparks 89A/90A and 82, using the rectangular pillar as part of one of the walls;
(c)the rectangular area between car park 82 and carparks 89A/90A cannot presently be absolutely committed, as the Brisbane City Council has indicated that it will require the wall between the carpark and the boardwalk at this point to be relocated to allow for the provision of seating on the boardwalk;
(d)the rectangular area referred to in (c) above shall, after the specific requirements of the Brisbane City Council are known, be used as the site of the storage area to be constructed, as referred to in (b) above. You agreed that the developer will discuss with the purchaser, the reasonable requirements of the purchaser as to the storage space, before construction of the storage space is commenced. A suggested location for the storage area is set out on the carpark drawing attached hereto, and marked “H”.”
Maroochydore contends that by the time of the appointment for settlement on 30 January 1996, Seymour was not able to provide those agreed car and storage spaces, and that Maroochydore duly terminated the contract by its solicitors’ letter - that occurring before any settlement could reasonably be considered as having taken place. Maroochydore’s alternate position is that no contract was ever concluded.
It is convenient that I record at the outset, with relation to the evidence bearing on the negotiations and as to the existence of any contract, that I prefer the evidence given by Mr Ferris and his company secretary Mr Brain, where it conflicts with evidence given by other witnesses called by other parties with relation to those aspects. The major other witness was Mr Terry, the real estate agent engaged by L J Hooker to market the units. Having seen and heard Mr Ferris and Mr Brain give their evidence, I reached the view, which I maintain, that their evidence was honest and reliable. Importantly also, it gained substantial support from contemporaneous documents.
The major factual issue in the case concerned what Maroochydore, through Ferris, was promised, by Seymour through Terry, as to car and storage spaces. In that important area, the evidence of Ferris and Brain was substantially supported by documentation, by contrast with the contrary evidence of Terry. For example, Terry said that the applicable storage area was always to be in the triangular area adjacent to spaces 81 and 82. He conceded that other options were raised, but said they were “quickly extinguished” (pages 41-42). On the other hand, Ferris’s contemporaneous notes indicate that he was originally (in mid November 1993) promised a storage area from among the larger units near the basement lifts (Exhibit 1 page 7), and other documents are consistent with his still holding that belief as late as mid December (Exhibit 34 page 2). The view expressed in evidence by Mr Terry, that the storage area was always limited to the triangle, sits rather uncomfortably with the flurry of communication on that very subject between Terry and Brain in mid to late December 1993.
Further, Mr Terry’s evidence was to the effect that the possibility of utilising the area to the right of space 82 was raised early in the piece by Ferris, and effectively then rejected (page 38). Yet Exhibit 34, to which I referred earlier, confirms Ferris’s having raised it as late as mid December, “as an afterthought”. See also Exhibit 40. There were other matters, but I need not go into more detail.
As I say, an assessment of comparative demeanour, strengthened by a substantial consistency between the oral evidence of Brain and Ferris and contemporaneous documents, persuaded me that I should accept their evidence in the case, preferring it in areas of conflict to the evidence of Mr Terry.
The question whether an agreement has been concluded, and as to the content of any such agreement, should be determined principally by an objective examination of the putative parties’ words and conduct (cf. Air Great Lakes Pty Ltd v. K S Easter (Holdings) Pty Ltd [1985] 2 NSWLR 309, 330, 337-8). What are those facts?
Maroochydore received the duplicate copies of the printed contract forms, through its solicitors Clayton Utz, on 19 November 1993 (Exhibit 1 pages 8-9). Additional pages, incorporating matters agreed between the respective solicitors on 3 and 8 December 1993, were provided later. Among other things, those pages purported to identify Maroochydore’s car and storage spaces by reference to the hatched area shown on the plan attached to the deleted 11th schedule, being the page numbered 5 to which I referred above.
Following receipt of the contract forms, Maroochydore expressed dissatisfaction to Terry as to the nominated car and storage spaces. New arrangements were then agreed between Brain and Terry, modifying those set out in the contract forms. The newly agreed position was reflected in the letter from Brain to Terry dated 23 December 1993 (Exhibit 1 pages 12-14). One notes that despite that sequence of events, Seymour still contends - I consider quite without foundation - that Maroochydore is to be regarded as having unconditionally agreed to the terms as to car and storage spaces contained in the earlier contract forms.
On 23 December 1993 Maroochydore returned the duplicate contract forms, executed by Maroochydore and Ferris, to Seymour’s solicitors Stubbs Barbeler Grant (Exhibit 1 page 15). Enclosed with the contracts were the letter to Stubbs Barbeler Grant and a copy of Mr Brain’s letter of the same date to Mr Terry at L J Hooker. Seymour accepts that its solicitors did receive all of those documents. It is of little moment, at this stage, that Mr Terry may not actually have seen them.
By facsimile dated 24 December 1993 Stubbs Barbeler Grant acknowledged receipt of the written contracts (Exhibit 1 page 16). They requested authorisation to complete part of the written contract on Maroochydore’s behalf (Exhibit 1 page 16). That authority was given (Exhibit 1 page 17). Having received Maroochydore’s letters of 23 December 1993, Seymour did not at any stage say that it did not agree with the terms expressed (as “agreed”) in Mr Brain’s letter to Mr Terry of that date.
On 5 January 1994 Maroochydore sent Seymour’s solicitors a bank guarantee issued by Maroochydore in the amount of $68,000 by way of deposit in respect of the purchase of unit 138. Seymour accepted that guarantee as the deposit under the contract. By facsimile dated 10 January 1994 Seymour’s solicitors confirmed to Maroochydore’s solicitors that Seymour had executed the contract.
The return to Stubbs Barbeler Grant of the duplicate contracts, signed by Maroochydore and Mr Ferris, together with a copy of Mr Brain’s letter to Mr Terry at L J Hooker, constituted an offer to purchase unit 138 on the terms contained in those documents. The conclusion that those letters were intended to modify the content of the contract forms earlier despatched is inescapable. One notes that in the letter to Stubbs Barbeler Grant, Maroochydore refers to the L J Hooker letter as setting out “conditions agreed with Mr Terry, as vendor’s agent, in connection with the carpark and storage area applicable to the apartment being purchased”. In the letter to L J Hooker, Maroochydore expressly stated that the executed written contract was “subject to” an agreement reached between it and Mr Terry “as the vendor’s agent”, the terms of which were then set out. The form of contract submitted to Maroochydore, as resubmitted to Seymour modified by the letters of 23 December, amounted to a counter offer from Maroochydore.
For any contract to have come into existence following Maroochydore’s (counter) offer, Seymour must have accepted that offer in an unqualified way: Evans Deakin Industries Ltd v. The Queensland Electricity Generating Board (1985) 1 BCL 334. Seymour’s conduct did amount to an unqualified acceptance of Maroochydore’s offer. On 10 January 1994 Seymour’s solicitors confirmed to Clayton Utz that Seymour had executed the contract. That was the only thing required of it. Performing that act and communicating the fact of that performance to Maroochydore’s solicitors should be construed as unconditional acceptance of the offer constituted by the Maroochydore communications of 23 December 1993. Further, by that same letter, Stubbs Barbeler Grant informed Clayton Utz that Maroochydore should forward a bank guarantee by way of deposit within seven days. That request is likewise reasonably explicable only on the basis that Maroochydore’s offer had been accepted and a binding contract constituted.
In Seymour’s reply and answer (para 2(c)), it relies on clause 13.1 of the conditions of contract, which is relevantly as follows:
“The purchaser expressly acknowledges that the terms and conditions set out in this Agreement including the Schedules and annexures contain the entire agreement as concluded between the parties notwithstanding any negotiations or discussions prior to the execution hereof and notwithstanding anything contained in any brochure report or other document prepared by the Vendor or its agents for submission to prospective purchasers ...”
Reliance on that provision does however beg the question: what was the agreement? As emerges from the sequence of circumstances related above, the contract must be regarded as the contract forms modified, as returned to Stubbs Barbeler Grant, by the contents of Mr Brain’s letter of 23 December 1993 to Mr Terry. That collection of documents comprised the offer which by its conduct, including most significantly of course the fact of execution, Seymour accepted.
What then, as to car and storage space, was Seymour contractually obliged to transfer to Maroochydore? First, there was the hatched area on page 5 of the contract documents originally despatched to Clayton Utz, the page to which I have already referred twice. That hatched area included the two car spaces as such numbered 81 and 82, and the hatched adjacent triangular area to the left. (The overall area was approximately 15.38 square metres, based on the evidence of Mr Douglas.) Second, and in addition, there was the L-shaped solid walled storage facility intended for the area between car spaces 82 and 89A as shown on the sheet marked “H” attached to Mr Brain’s letter to Mr Terry of 23 December 1993.
As to that second matter, Seymour’s obligation was subject to the requirements of the Brisbane City Council, and the reasonable requirements of Maroochydore. It remained contractually enforceable. Compare Godecke v. Kirwan (1973) 129 CLR 629, 642.
What was Maroochydore offered at settlement? It was offered none of the second item - the storage area between car spaces 82 and 89A. (The facility actually subsequently constructed there, which forms part now of lot 119, occupies 12.22 square metres - Exhibit 21.) As to the triangular area adjacent to car spaces 81 and 82, Maroochydore was offered approximately 8.5 square metres within a solid walled area, which was not part of the agreed position.
A number of clauses of the contract allowed Seymour some latitude in what it provided. For example, clause 12.3 provided that Maroochydore should be entitled to a lot with measurements “substantially” in accordance with the specifications. Clause 12.5 bound Maroochydore to “any alterations in the ... size, location ... of any lot ... or any alterations in the ... size or location of any car space”, subject to the issue of “material prejudice”.
To determine the materiality of the divergence between what Seymour contracted to provide Maroochydore and what it actually provided at settlement, one asks essentially whether what Maroochydore was to receive was substantially what had been bargained for: Leighton Properties Pty Ltd v. Hurley [1984] 2 Qd R 534, 541, an issue of fact to be decided by reference to all relevant circumstances and in relation to which “the mere question of smallness of area or of money value” is not necessarily determinative: pages 543-4. Although the issue of material prejudice will generally fall to be determined by essentially objective considerations (Bassingthwaighte v. Butt [1982] Qd R 670, 680-1), the court may have regard to the subjective importance to a purchaser of particular features of the property to the extent to which that was communicated to the vendor: Gold Coast Carlton Pty Ltd v.Kamalesvaran [1983-4] ANZ ConvR 506,509; (1984) QConvR ¶ 55-144.
Accepting what Seymour offered at settlement, in purported completion of its contractual obligation, would have materially prejudiced Maroochydore, even though - as Seymour stresses - these were not the predominant components of this $680,000 sale. They were nevertheless important components, both absolutely, and subjectively to Mr Ferris - as Mr Terry had been made well aware. Because of the truncation of the triangular space adjacent to spaces 81 and 82, which had been walled in, Maroochydore lost the use of an area which, on the evidence I accept, would have been adequate for the parking of a third small vehicle, or a jet ski trailer or the like, or for additional storage. The absence of the separate “L” shaped storage area also rendered the unit less desirable and saleable. Further, as Mr Terry knew, very good car and storage space was a matter of considerable particular importance to Mr Ferris, and the significance of that was not diminished by his wish to “trade up” (p349) which, again, Seymour stressed. These circumstances all combine to warrant the conclusion that there was a material difference between what Seymour in fact offered and what it was contractually obliged to offer, and that had Maroochydore been obliged to accept the former, it would have been materially prejudiced.
It follows that at settlement, Maroochydore was - other matters apart - entitled to terminate the contract. Seymour was not, in short, proposing to fulfil its contractual obligations.
I turn now to the events of the settlement conference on 30 January 1996. I heard evidence from a number of witnesses who participated in that conference. Messrs Meyer, Bell, Lillienstein, Wood and Foran (settlement officers from the ANZ Bank and CBA respectively), all gave evidence. (The ANZ Bank was Seymour’s mortgagee.) There were divergences among their accounts. I generally preferred the evidence of Messrs Bell and Lillienstein, representatives of Clayton Utz, as to what occurred. I regarded Mr Lillienstein, in particular, as a comparatively disinterested witness whose account appeared to be reliable. There is no need for me to analyse here the particular discrepancies within this body of evidence, and it suffices for me to set out the circumstances as I find they likely occurred.
At about 2.15pm on 30 January 1996 Bell and Lillienstein attended the offices of Stubbs Barbeler Grant for the purpose of the settlement of two contracts relating to units in Admiralty Towers. After completion of the first contract, and in order to save time later, Mr Meyer (of Stubbs Barbeler Grant) invited Bell to inspect the documents in relation to the Maroochydore settlement. Bell did so and handed them back. Bell and Lillienstein then proceeded back into the reception area, to await a representative from the CBA.
Mr Foran arrived after a little while. He then went with Bell and Lillienstein back into the settlement room. Bell and Lillienstein sat on one side of the table. Meyer and Wood sat on the other. Foran sat at one end of the table next to Lillienstein, and close to Meyer. Meyer then handed the documents to Bell. Bell quickly examined and ticked them off on his settlement checklist. Through Lillienstein, Bell then handed the documents to Foran who commenced to check them. Bell also passed the transfer and associate documents to Foran. At the same time, Foran passed the bank cheque to Bell. I accept that Foran was merely providing it for inspection, consistently with the approach to the exchange of all documents at that stage. See, for example, the evidence of Meyer (p130 ll 1-35) and Wood (p176 ll l-10).
Foran commenced his process of examination. In the meantime, Bell examined the cheque to confirm that the amount was correct. He then asked Meyer whether there had been any amendment to the building units plan or by-laws in relation to carparking or storage. Meyer said there had been none. Bell then asked whether those were the only documents Meyer was tendering, and Meyer confirmed that that was so. Meyer then asked Bell whether he (Bell) had received Meyer’s letter of the previous day, and Bell said that he had.
Meyer then handed Bell the section 53 notices which had been previously signed by Clayton Utz. While Bell was completing the address of Maroochydore on those notices, he placed the cheque on the table in front of Meyer. Meyer picked up the cheque and showed it to Wood who marked his file in some way. Significantly, the cheque was placed back on the table then, and Bell asked Meyer whether the amount was correct. Meyer said it was.
Within a very short time of that response, Bell told Meyer that he (Bell) was not satisfied that his client was receiving all it had bargained for. He informed Meyer that he had instructions to terminate the contract, and then handed Meyer a copy of the letter of termination.
I find that by that time, Mr Foran (of CBA) had not finished checking the documents (cf. p 263 ll 30-40, p269 l 50, p271 l 40, p272 l 50, p279 l 45, p281 l 35, p 283 l 1). I found Mr Foran a credible witness.
I do not feel it necessary to give detailed reasons why I prefer the evidence of Mr Foran, Mr Bell and Mr Lillienstein, in areas of conflict, to the evidence given by the other participants in the settlement conference. I have been addressed very comprehensively on particular aspects bearing on my assessment of the credibility of these witnesses. The assessment is in the end dependent on my view, having seen and heard the witnesses. I was, during the trial, conscious of a myriad of divergences, of varying degrees of significance of course, and therefore mindful of the potential importance of the way those witnesses gave their evidence. Doing the best I can, I have reached the view I have expressed: that the more credible account was that given by Bell, Lillienstein and Foran.
I am satisfied that the evidence, viewed as a whole, warrants the conclusion that no settlement had occurred prior to the act of termination. The process of checking had not been completed. Nothing had been said by either side to suggest that the process had been completed, or to the effect that it was overall satisfied with what had been furnished or offered. The cheque was handed over, but in the course of the checking of documents: that circumstance carried no larger significance. No doubt the question when settlement occurs is to be determined having regard to the basic obligations of both vendor and purchaser. The obligation of the purchaser is to hand over the purchase money, and the vendor, to hand over the transfer together with related documents to enable clear title to pass. Those obligations are concurrent and mutually dependent: Foran v. Wight (1989) 168 CLR 385,396, 417, 455. They are “simultaneous acts to be performed interchangeably”: Palmer v. Lark [1945] Ch 182, 184-5. An exchange in that sense had not occurred in this case prior to the act of termination.
Evidence was given by Mr Gregory and Mr Barbeler which might be characterised as opinion evidence. It was no doubt conscientiously given, but I have to say that I found it of no assistance in the resolution of the case. Importantly, neither established any profession-wide practice on relevant matters. There was no sufficiently well established way of approaching settlements in these situations to allow one to draw a conclusion, based on any generally applicable pattern, as to how one should interpret what happened.
Maroochydore makes a separate claim for a declaration that the contract, including the guarantee, is void ab initio, relying on section 87(2)(a) of the Trades Practices Act 1974. That relief was based on the contention that the promises made by Mr Terry concerning car and storage spaces (reflected in the letter of 23 December) amounted to misleading and deceptive conduct in contravention of s.52 of the Act. The representations were said to be representations both as to present fact, that is, the state of Seymour’s intention, and as to future matters, that is the facilities to be provided to Maroochydore in those respects. It is unnecessary for me to pursue this separate head of defence in detail, because of the way I have approached the primary question. Were it to matter, however, I would find that the representations made by Mr Terry were misleading and deceptive. I accept the submissions made on behalf of Maroochydore.
It is true to say that no evidence was led to suggest that Seymour at any stage intended to provide Maroochydore with the car and storage spaces identified in the letter from Mr Brain to Mr Terry of 23 December, or that, if Seymour ever had such an intention, it was based on any reasonable ground. Indeed, the whole thrust of Seymour’s case was that it was under no obligation to provide those facilities. Furthermore, the evidence does support a positive finding that Seymour had no such intention. Mr Terry said quite plainly in his evidence that the storage area to go with unit 138 was as identified by the number 28 on the plan, Exhibit 3: pages 36-7, 72-3 and 73-4.
Maroochydore has counterclaimed for the return of the bank guarantee it provided by way of deposit under the contract. The contract being at an end, Seymour must be ordered to return that guarantee to Maroochydore.
I turn now to Seymour’s claim against CBA. Seymour contends that Wood (the ANZ settlement officer) “appropriated” the cheque. Seymour’s own witnesses gave evidence warranting the conclusion that Seymour would not be entitled to the cheque unless and until both CBA and Maroochydore were satisfied with the documents proffered at the settlement conference. I note for example the evidence of Mr Meyer, the solicitor for Seymour, at pages 122-3. The cheque was proffered at the settlement conference, but only for verification of its details: evidence of Meyer page 130 ll 1-35, and Wood page 176 ll 1-10. The fact is that Maroochydore was justifiably not satisfied as to Seymour’s ability to complete, and it exercised its consequent right to terminate. Was Seymour nevertheless entitled to the cheque?
Seymour’s claim against CBA is for damages under s.76 of the Cheques and Payment Orders Act 1986 (Cth), on the basis of the dishonour of the cheque. That section provides, as relevant:
“(i) Subject to sub-section (2), where a cheque is dishonoured, the holder may recover as damages from any person liable on the cheque, ... -
(a)if the cheque is dishonoured in Australia -
(i)the sum ordered to (be) paid by the cheque; and
(ii)the amount of any interest that, in accordance with the regulations, is payable in respect of that sum; and
(b)...
(2)Where an action or proceedings is brought in a Court for the recovery of damages under sub-section (1), the court may, if it is of the opinion that justice so requires, direct that interest payable under that sub-section be withheld in whole or in part.
(3)Damages recoverable under sub-section (1) shall be deemed to be liquidated damages.”
That the drawer’s liability to the holder is nevertheless dependent on the holder’s title to the cheque, is consistent with s.67(1):
“Where a cheque is duly presented for payment, the drawee bank shall either pay or dishonour the cheque as soon as is reasonably practicable and, if the drawee bank fails to do so, then, unless it has become aware of a defect in the holder’s title or that the holder has no title to the cheque, the drawee bank -
(a)may not dishonour the cheque; and
(b)is liable to pay the cheque to the holder.”
Seymour’s acquiring title to the cheque sufficient to found a claim for damages for its amount under s.76, depended on its having been given the cheque unconditionally. That did not occur. Any delivery here, if it occurred, was “conditional or for a special purpose” (s.27).
The purpose of the access to the cheque given to Seymour and ANZ at the settlement conference was, on the evidence I accept and on the inferences I draw, limited to verification of the details of the cheque, further pending Maroochydore’s being satisfied with Seymour’s ability to convey full title to the subject property and, in a relevant way, its satisfaction with the transfer documents. On my findings, Maroochydore did not reach that state of satisfaction, and was justified in that. In the result, Seymour did not gain the title to the cheque requisite to found a substantial claim for its amount.
This result is a hardly surprising consequence of what I have held to be Maroochydore’s effectual termination of the contract. CBA was to receive consideration for the bank cheque from Maroochydore as its customer. CBA was to receive a registered first mortgage over the unit. See Exhibit 37. It did not receive that because Maroochydore properly terminated the contract because of Seymour’s default, and Maroochydore was therefore unable to give the security. There was a failure of consideration for the cheque which authorised the dishonour and relieved CBA of liability under s.76 (cf. Commonwealth Trading Bank of Australia v. Sidney Raper [1975] 2 NSWLR 227, 231, 252). It would be an odd result if Seymour were nevertheless entitled to be paid, in effect, the balance purchase moneys, with CBA left to pursue Maroochydore for repayment. One readily infers that Seymour’s title to the cheque was always (objectively) understood to be dependent on Seymour’s having discharged its contractual obligation - which it did not.
The plaintiff’s action is dismissed. There will be a declaration that the second defendant, Maroochydore Convenience Centre Pty Ltd, is entitled to the return to it of the bank guarantee provided by way of deposit referred to in paragraph (c) of the amended defence and counterclaim of the second and third defendants. There will be a declaration that the first defendant, Commonwealth Bank of Australia, is entitled to the cheque referred to in its counter-claim against the plaintiff. There will be a declaration that on 30 January 1996, the second defendant duly terminated the agreement referred to in paragraph 3 of the amended defence and counterclaim of the second and third defendants. Dismiss all other proceedings and order the plaintiff Seymour CBD Pty Ltd to pay the costs of all other parties of and incidental to the proceedings, including any reserved costs, to be taxed.
IN THE SUPREME COURT
OF QUEENSLAND
Writ No. 939 of 1996
Brisbane
[Seymour CBD P/L v Commonwealth Bank of Australia & Ors]
BETWEEN:
SEYMOUR CBD PTY LTD (ACN 010 302 860)
Plaintiff
AND:
COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
First Defendant
AND:
MAROOCHYDORE CONVENIENCE CENTRE PTY LTD (ACN 010 640 169)
Second Defendant/Third Party
AND:
RANDALL ALEXANDER FERRIS
Third Defendant
de JERSEY CJ
Judgment delivered 14 May 1999
PLAINTIFF’S ACTION DISMISSED.
DECLARED THAT THE SECOND DEFENDANT, MAROOCHYDORE CONVENIENCE CENTRE PTY LTD, IS ENTITLED TO THE RETURN TO IT OF THE BANK GUARANTEE PROVIDED BY WAY OF DEPOSIT REFERRED TO IN PARAGRAPH ( C ) OF THE AMENDED DEFENCE AND COUNTERCLAIM OF THE SECOND AND THIRD DEFENDANTS.
DECLARED THAT THE FIRST DEFENDANT, COMMONWEALTH BANK OF AUSTRALIA, IS ENTITLED TO THE CHEQUE REFERRED TO IN ITS COUNTER-CLAIM AGAINST THE PLAINTIFF.
DECLARED THAT ON 30 JANUARY 1996, THE SECOND DEFENDANT DULY TERMINATED THE AGREEMENT REFERRED TO IN PARAGRAPH 3 OF THE AMENDED DEFENCE AND COUNTERCLAIM OF THE SECOND AND THIRD DEFENDANTS.
ALL OTHER PROCEEDINGS DISMISSED.
THE PLAINTIFF, SEYMOUR CBD PTY PTD, TO PAY THE COSTS OF ALL OTHER PARTIES OF AND INCIDENTAL TO THE PROCEEDINGS, INCLUDING ANY RESERVED COSTS, TO BE TAXED.
CATCHWORDS: CONTRACT - sale of residential unit - whether a contract existed - identification of the terms of the contract - whether the contract had been settled - whether there had been an effective and valid termination of the contract - whether the vendor was entitled to damages from the purchaser’s bank, pursuant to s.76 Cheques and Payment Orders Act 1986 (Cth) on the basis that it dishonoured the cheque - whether vendor gave over cheque unconditionally.
Air Great Lakes Pty Ltd v. K S Easter (Holdings) Pty Ltd [1985] 2 NSWLR 309
Evans Deakin Industries Ltd v. The Queensland Electricity Generating Board (1985) 1 BCL 334
Godecke v. Kirwan (1973) 129 CLR 629
Leighton Properties Pty Ltd v. Hurley [1984] 2 Qd R 534
Bassingthwaighte v. Butt [1982] Qd R 670
Gold Coast Carlton Pty Ltd v. Kamalesvaran [1983-4] ANZ ConvR 506
Foran v. Wight (1989) 168 CLR 385
Palmer v. Lark [1945] Ch 182
Commonwealth Trading Bank of Australia v. Sidney Raper [1975] 2 NSWLR 227
Trade Practices Act 1974 (Cth), ss. 52, 87(2)(a)
Cheques and Payment Orders Act 1986 (Cth), ss. 67(1), 76
Counsel:Mr J S Douglas QC, with him Mr M Daubney for the plaintiff.
Mr P H Morrison QC, with him Mr D C Andrews for the first defendant.
Mr S L Doyle SC, with him Mr D G Clothier for the second defendant/third party and third defendant
Solicitors:Nicholsons Solicitors for the plaintiff.
Freehill Hollingdale & Page for the first defendant.
McCullough Robertson for the second defendant/third party and third defendant.
Hearing Dates: 11, 12, 15, 16, 17 & 18 March 1999
13
0
0