Sport Developments P/L & Anor v. Del Fabbro - [2009] QCA 64

SUPREME COURT OF QUEENSLAND

CITATION:

Sport Developments P/L & Anor v Del Fabbro [2009] QCA 64

PARTIES:

SPORT DEVELOPMENTS PTY LIMITED
ACN 095 692 792 AS TRUSTEE FOR THE OLYMPIC GOLD DISCRETIONARY TRUST
(first plaintiff /first appellant)
TRIPOD DEVELOPMENTS PTY LTD ACN 108 882 015 AS TRUSTEE FOR THE TRIPKAT DISCRETIONARY TRUST
(second plaintiff /second appellant)
v
EVIAN LINDA DEL FABBRO
(defendant /respondent)

FILE NO/S:

Appeal No 8634 of 2008
SC No 220 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

24 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2009

JUDGES:

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

ORDER:

1. Appeal dismissed

2. Appellants to pay the respondent's costs of the appeal assessed on the standard basis

CATCHWORDS:

CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – INSTALMENT CONTRACTS – STATUTORY RESTRICTIONS ON RESCISSION OR TERMINATION OF INSTALMENT CONTRACT OR FORFEITURE OF INSTALMENTS OF PURCHASE PRICE – where s 72 of the Property Law Act 1974 (Qld) requires that notice be served upon purchaser 30 days prior to termination of instalment contract – where vendor duly served notice upon purchaser – where parties subsequently agreed to extend duration of contract – where purchaser again defaulted under extended contract – where vendor purported to terminate contract without further notice under s 72 – where purchaser claimed termination ineffective due to lack of notice – whether notice served with respect to first default capable of discharging obligation on purchaser under s 72 for termination pursuant to subsequent defaults

CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – INSTALMENT CONTRACTS – FORFEITURE OF INSTALMENTS OF PURCHASE PRICE – RELIEF AGAINST FORFEITURE OF INSTALMENTS OF PURCHASE PRICE – AVAILABILITY – where parties agreed to extend duration of instalment contract – where consideration for extended duration further "instalment" – where purchaser claimed failure by vendor to repay further "instalment" constituted forfeiture – whether purchaser entitled to relief against forfeiture

CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – VENDOR'S REMEDIES – RESCISSION OR TERMINATION – ENTITLEMENT TO – where vendor purported to terminate contract on purchaser's failure to perform the contract – where purchaser alleged that terminating party improperly purported to terminate contract insofar as it indicated a readiness and willingness to perform – where alleged readiness and willingness to perform subject to inspection of property by financier – where contract expressly not subject to finance – whether vender entitled to terminate contract

Property Law Act 1974 (Qld), s 71, s 71A, s 72

Alghussein Establishment v Eton College [1991] 1 All ER 267, cited
Carr v J A Berriman Pty Ltd (1953) 89 CLR 327; [1953] HCA 31, cited
Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 2 AC 180, cited
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978]…

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] QCA 64
Decision Date: 24 March 2009

CaseChat Overview and Summary

In the case of Sport Developments P/L & Anor v. Del Fabbro, the dispute revolved around a breach of a contract for the sale of property and the remedies available to the vendor following the purchaser's defaults. The case was heard in the Queensland Court of Appeal. The key issues before the court were whether the notice served by the vendor to the purchaser pursuant to section 72 of the Property Law Act 1974 (Qld) could be considered sufficient for subsequent defaults, and whether the purchaser was entitled to relief against forfeiture of instalments of the purchase price.

The court considered whether the notice served under section 72 was sufficient to cover any future defaults by the purchaser. It found that the notice served in relation to the first default was capable of discharging the obligation on the purchaser under section 72 for termination in the event of subsequent defaults. Additionally, the court examined the availability of relief against forfeiture of instalments of the purchase price, concluding that the purchaser was not entitled to such relief because the extended duration of the contract was considered as another "instalment" for which the purchaser had not fulfilled their obligation.

The court also addressed the vendor's entitlement to terminate the contract. It found that the vendor was entitled to terminate the contract upon the purchaser's failure to perform, despite the purchaser's claim that the vendor had improperly purported to terminate the contract by indicating a readiness and willingness to perform, subject to inspection of the property by a financier. The court held that the contract was expressly not subject to finance, and thus, the vendor's entitlement to terminate the contract was valid.

The appeal was dismissed, and the appellants were ordered to pay the respondent's costs of the appeal assessed on the standard basis.

Orders

Orders of the court

1. Appeal dismissed

2. Appellants to pay the respondent's costs of the appeal assessed on the standard basis

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:	Sport Developments P/L & Anor v Del Fabbro [2009] QCA 64
PARTIES:	SPORT DEVELOPMENTS PTY LIMITED ACN 095 692 792 AS TRUSTEE FOR THE OLYMPIC GOLD DISCRETIONARY TRUST (first plaintiff /first appellant) TRIPOD DEVELOPMENTS PTY LTD ACN 108 882 015 AS TRUSTEE FOR THE TRIPKAT DISCRETIONARY TRUST (second plaintiff /second appellant) v EVIAN LINDA DEL FABBRO (defendant /respondent)
FILE NO/S:	Appeal No 8634 of 2008 SC No 220 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	24 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	3 March 2009
JUDGES:	Keane and Muir JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal dismissed 2. Appellants to pay the respondent's costs of the appeal assessed on the standard basis
CATCHWORDS:	CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – INSTALMENT CONTRACTS – STATUTORY RESTRICTIONS ON RESCISSION OR TERMINATION OF INSTALMENT CONTRACT OR FORFEITURE OF INSTALMENTS OF PURCHASE PRICE – where s 72 of the Property Law Act 1974 (Qld) requires that notice be served upon purchaser 30 days prior to termination of instalment contract – where vendor duly served notice upon purchaser – where parties subsequently agreed to extend duration of contract – where purchaser again defaulted under extended contract – where vendor purported to terminate contract without further notice under s 72 – where purchaser claimed termination ineffective due to lack of notice – whether notice served with respect to first default capable of discharging obligation on purchaser under s 72 for termination pursuant to subsequent defaults CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – INSTALMENT CONTRACTS – FORFEITURE OF INSTALMENTS OF PURCHASE PRICE – RELIEF AGAINST FORFEITURE OF INSTALMENTS OF PURCHASE PRICE – AVAILABILITY – where parties agreed to extend duration of instalment contract – where consideration for extended duration further "instalment" – where purchaser claimed failure by vendor to repay further "instalment" constituted forfeiture – whether purchaser entitled to relief against forfeiture CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – VENDOR'S REMEDIES – RESCISSION OR TERMINATION – ENTITLEMENT TO – where vendor purported to terminate contract on purchaser's failure to perform the contract – where purchaser alleged that terminating party improperly purported to terminate contract insofar as it indicated a readiness and willingness to perform – where alleged readiness and willingness to perform subject to inspection of property by financier – where contract expressly not subject to finance – whether vender entitled to terminate contract Property Law Act 1974 (Qld), s 71, s 71A, s 72 Alghussein Establishment v Eton College [1991] 1 All ER 267, cited Carr v J A Berriman Pty Ltd (1953) 89 CLR 327; [1953] HCA 31, cited Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 2 AC 180, cited DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978]…