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Steer v Burchill

Steer v Burchill

Case [2017] QDC 206 4 August 2017

Summary Judgment

Breach of Contract

Contract Formation

Unconscionable Conduct

Misleading and Deceptive Conduct

Civil Litigation & Procedure

Contract Law

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DISTRICT COURT OF QUEENSLAND

CITATION:

Steer v Burchill [2017] QDC 206

PARTIES:

PATRICIA MONICA STEER
(plaintiff)

v

GEOFFREY HENRY BURCHILL AND KAY VIVIENNE BURCHILL
(defendants)

FILE NO/S:

230 of 2016

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

4 August 2017

DELIVERED AT:

Southport

HEARING DATE:

5 June 2017

JUDGE:

Muir DCJ

ORDERS:

1.   There be summary judgment for the defendants on the plaintiff’s claim to an entitlement to the deposit in the sum of $195,000 paid by the defendants under the contract of sale entered into between the plaintiff and the defendants on 14 February 2016.

2.   There be summary judgment for the defendants on their counterclaim as to their entitlement to the Deposit in the sum of $195,000.

3.   The defendants are entitled to payment of the Deposit in the sum of $195,000.

4.   The plaintiff is to cause the Deposit in the sum of $195,000 to be paid to the defendants by 4.00pm Friday 11 August 2017.

5.   The plaintiff is to pay interest on the sum of $195,000 from 1 July 2016 until 4 August 2017 in accordance with the Civil Proceedings Act 2011 (Qld).

6.   Paragraphs 23(c), 27A and 27B of the further amended statement of claim are struck out

7.   The plaintiff pay the defendants’ cost of their counterclaim, the summary judgment application and the strike out application.

8.   The parties are to confer and to provide a final minute of orders as agreed, by 4.00pm Tuesday 8 August 2017, including a calculation of the interest amount.

9.   If alternate orders as to the date for payment, interest and or costs are sought, the parties are to file written outlines of no more than 2 pages attaching the orders sought, by 4.00pm Wednesday 9 August 2017. If necessary the matter will then be relisted at a date to be fixed with leave to appear by telephone.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN QUEENSLAND – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL - LEGAL QUESTION - where plaintiff and defendants entered into a REIQ contract for sale of land containing a special condition that the contract was subject to the sale of another property owned by the defendants – where contract was terminated by the plaintiff -where plaintiff commenced proceedings for breach of contract and for misleading and deceptive conduct seeking an entitling to the deposit under the contract as well as a claim for damages for breach of contract and for misleading and deceptive conduct under the Competition and Consumer Act 2010 (Cth) - where defendants accept there is a need for a trial of the plaintiff’s claims for damages – where defendants contend that the plaintiff has no real prospects of establishing her claim to an entitlement to the deposit – where the defendants seek summary judgment on their counterclaim for the deposit – where facts not in dispute – whether legal issue ought to be determined summarily - whether defendants entitled to summary judgment on part of 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.

Continue reading Steer v Burchill

Details

AGLC: Steer v Burchill [2017] QDC 206
Case: [2017] QDC 206
Decision Date: 4 August 2017

CaseChat Overview and Summary

The case of Steer v Burchill involved a dispute between the plaintiff, Steer, and the defendants, Burchill, regarding the sale of land under a contract. The contract, entered into on 14 February 2016, contained a special condition that the sale was subject to the sale of another property owned by the defendants. Upon termination of the contract by Steer, proceedings were commenced for breach of contract and misleading and deceptive conduct, seeking an entitlement to the deposit and damages. The defendants accepted the need for a trial on the claims for damages but contested Steer's prospects of success in establishing her entitlement to the deposit. The defendants also sought summary judgment on their counterclaim for the deposit and applied to strike out certain parts of Steer's statement of claim.

The court was required to decide several legal issues. Firstly, whether the special condition in the contract was an essential term, a common law essential term, or a fundamental breach of an intermediate term that would entitle Steer to terminate the contract. Secondly, whether the defendants' conduct amounted to an express or implied repudiation of the contract. Thirdly, the effect of the extension of the settlement date of the contract and whether this constituted a default by the defendants. Fourthly, whether a breach of the special condition entitles Steer to affirm or terminate the contract. Additionally, the court needed to determine whether parts of Steer's statement of claim should be struck out as unnecessary and scandalous.

The court found that the special condition was not an essential term, either under the contract or at common law, nor was it a fundamental breach of an intermediate term. The defendants' conduct did not amount to an express or implied repudiation of the contract. The extension of the settlement date did not constitute a default by the defendants, and a breach of the special condition did not entitle Steer to terminate the contract. Consequently, the court granted summary judgment in favour of the defendants on Steer's claim to the deposit and on the defendants' counterclaim for the deposit. The court also struck out certain paragraphs of Steer's statement of claim as unnecessary and scandalous. The final orders required Steer to pay the deposit to the defendants, along with interest and costs. The parties were directed to confer and provide a final minute of orders by a specified date.

Orders

Orders of the court

1. There be summary judgment for the defendants on the plaintiff’s claim to an entitlement to the deposit in the sum of $195,000 paid by the defendants under the contract of sale entered into between the plaintiff and the defendants on 14 February 2016.

2. There be summary judgment for the defendants on their counterclaim as to their entitlement to the Deposit in the sum of $195,000.

3. The defendants are entitled to payment of the Deposit in the sum of $195,000.

4. The plaintiff is to cause the Deposit in the sum of $195,000 to be paid to the defendants by 4.00pm Friday 11 August 2017.

5. The plaintiff is to pay interest on the sum of $195,000 from 1 July 2016 until 4 August 2017 in accordance with the Civil Proceedings Act 2011 (Qld).

6. Paragraphs 23(c), 27A and 27B of the further amended statement of claim are struck out

7. The plaintiff pay the defendants’ cost of their counterclaim, the summary judgment application and the strike out application.

8. The parties are to confer and to provide a final minute of orders as agreed, by 4.00pm Tuesday 8 August 2017, including a calculation of the interest amount.

9. If alternate orders as to the date for payment, interest and or costs are sought, the parties are to file written outlines of no more than 2 pages attaching the orders sought, by 4.00pm Wednesday 9 August 2017. If necessary the matter will then be relisted at a date to be fixed with leave to appear by telephone.

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

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Ratio Decidendi

Legal Principle Established

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Citations

Steer v Burchill [2017] QDC 206

Cases Citing This Decision

No citing cases yet.

Cases Cited

Westpac Banking Corporation v Zilzie Pty Ltd [2016] QSC 238
Citation 1 (Para 1)

…gal issues raised on the facts of this case.[25] [25]Such an approach was taken by Jackson J recently in Westpac Banking Corporation v Zilzie Pty Ltd [2016] QSC 238 at [83], [84].…
Goggin v Majet [2015] QCA 244
Citation 2 (Para 1)

…isclaimer constituted a default of the buyer within the meaning of cl 2.4(1)(c) and therefore the sellers were entitled to the deposit.[75] [73][2015] QCA 244; [2016] 2 Qd R 401. [74][2016] 2 QD R 401. Clause 2.4(1) (c) in that case was identical to the present. [75]At [41].…
Bank of Queensland Ltd v Chartis Australia Insurance Ltd [2013] QCA 183
Citation 3

…owed Ansett Australia Holdings Ltd v International Air Transport Association (2006) 60 ACSR 468, considered Bank of Queensland Limited v Chartis Australia Insurance Limited (2013) QCA 183, followed Bernstrom -v- National Australia Bank Limited [2003] 1 Qd R 469, considered Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202, considered Cold…
Raging Thunder Pty Ltd v Bank of Western Australia Ltd [2012] QSC 329
Citation 4 (Para 1)

…the word “ real ” requiring other than a fanciful prospect of success.[12] [10] Raging Thunder Pty Ltd & Anor v Bank of Western Australia Ltd [2012] QSC 329 at [11] per Applegarth J with reference to Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; see also Coldham-Fussell v Commissioner of Taxation (…
Yule v Smith [2012] NSWCA 191
Citation 5 (Para 1)

…td (1982) 149 CLR 37 per Mason J at 551 and 552 and Gibbs CJ at 541; See also Maynard v Goode (1926) 37 CLR 529 per Isaacs J at 541; Yule v Smith [2012] NSWCA 191 at para [81]; [57]Para 37 of the outline of argument of the respondent plaintiff. [58]Para 39 of the outline of argument of the respondent plaintiff; par…
Coldham-Fussell v Commissioner of Taxation [2011] QCA 45
Citation 6 (Para 1)

…plegarth J with reference to Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; see also Coldham-Fussell v Commissioner of Taxation (2011) 82 ACSR 439 at [97]. [11]As White JA (with whom de Jersey CA and McMurdo P agreed) observed in Coldham-Fussell v Commissioner of Taxation (2011) 82 ACSR 439 at [98]. [12…
Spencer v Commonwealth of Australia [2010] HCA 28
Citation 7

…rties Pty Ltd Crittenden & Anor [2009] QSC 290, considered Soper v Arnold (1889) 14 App Cas 429, considered Spencer v Commonwealth (2010) 241 CLR 118, considered St George Bank Ltd v Wright [2009] QSC 337, considered Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, considered Taylor v Corporation of St Helens (1877) 6 Ch D 264, con…
Ace Property Holdings Pty Ltd v Australian Postal Corporation [2010] QCA 55
Citation 8 (Para 1)

…ws that any ability to rely on the warranty in support of the conclusion is lost. [80]See Ace Property Holdings Pty Ltd v Australian Post Corporation [2010] QCA 55 ; Sargent v ASL Developments Ltd (1974) 131 CLR 634, 658.…
St George Bank Limited v Wright [2009] QSC 337
Citation 9 (Para 1)

…Investments (Australia) Pty Ltd [2009] 2 Qd R 202 at 210; Mirvac Queensland Pty Ltd v Horne [2009] QSC 269 at [18]-[24]; St George Bank Ltd v Wright [2009] QSC 337.…
Scali Properties Pty Ltd v Crittenden [2009] QSC 290
Citation 10 (Para 1)

…nted an extension of the Steer Contract to this date. [72]See the comments of Chief Justice de Jersey in Scali Properties Pty Ltd Crittenden & Anor [2009] QSC 290 at [9] with reference to Sargent v ASL Developments Ltd (1974) 131 CLR 634, 641-6, 656-6.…
Mirvac Queensland Pty Ltd v Horne [2009] QSC 269
Citation 11 (Para 1)

…at [15] with reference to Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202 at 210; Mirvac Queensland Pty Ltd v Horne [2009] QSC 269 at [18]-[24]; St George Bank Ltd v Wright [2009] QSC 337.…
Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited (No. 3) [2009] QSC 260
Citation 12

…07) 233 CLR 115, considered Maynard v Goode (1926) 37 CLR 529, considered Mirvac Queensland Pty Ltd v Horne [2009] QSC 260, considered Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 37, followed Raging Thunder Pty Ltd & Anor v Bank of Western Australia Ltd [2012] QSC 329, considered Sargent v ASL Developm…
International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3
Citation 13

…lia Holdings Ltd v International Air Transport Association (2006) 60 ACSR 468 per Nettle at [88] and [118]; affirm on this point in the High Court in (2008) 234 CLR 151 per Gummow, Hayne, Heydon, Crennan and Kiefel JJ at [67] to [70].…
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61
Citation 14

…125, considered Goggin v Majet [2016] 2 Qd R 401, distinguished Howe v Smith (1884) 27 Ch D 89, considered Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115, considered Maynard v Goode (1926) 37 CLR 529, considered Mirvac Queensland Pty Ltd v Horne [2009] QSC 260, considered Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 37, f…
Ansett Australia Holdings Ltd v International Air Transport Association [2006] VSCA 242
Citation 15

…- Hyde (2000) 201 CLR 552, followed Ansett Australia Holdings Ltd v International Air Transport Association (2006) 60 ACSR 468, considered Bank of Queensland Limited v Chartis Australia Insurance Limited (2013) QCA 183, followed Bernstrom -v- National Australia Bank Limited [2003] 1 Qd R 469, considered Bolton Proper…
Agar v Hyde [2000] HCA 41
Citation 16 (Para 2)

…ise of power to summarily terminate proceedings must always be attended with caution.[20] As Gaudron, McHugh, Gummow and Hayne JJ said in Agar v Hyde (2000) 201 CLR 552 at 575-576:…
Perri v Coolangatta Investments Pty Ltd [1982] HCA 29
Citation 17 (Para 1)

…he defendants as a condition precedent or subsequent to performance of the type dealt with and discussed in Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537.[56] The contingency as the plaintiff submitted is of a well-known type and in this case is the defendants’ completion of the sale of their property un…
Sargent v ASL Developments Ltd [1974] HCA 40
Citation 18 (Para 1)

…nts of Chief Justice de Jersey in Scali Properties Pty Ltd Crittenden & Anor [2009] QSC 290 at [9] with reference to Sargent v ASL Developments Ltd (1974) 131 CLR 634, 641-6, 656-6.…
Theseus Exploration NL v Foyster [1972] HCA 41
Citation 19 (Para 1)

…s turn upon questions of law, the court may give summary judgment even where the point of law is difficult.[15] [14] Theseus Exploration NL v Foyster (1972) 126 CLR 507. [15] Raging Thunder Pty Ltd v Bank of Western Australia Ltd [2012] QSC 329 at [15] with reference to Bolton Properties Pty Ltd v JK Investments (Aus…
Gange v Sullivan [1966] HCA 55
Citation 20

…ed Donaldson v Bexton [2007] 1 QD R 525, cited Ellul v Oakes (1972) 3 SASR 377, considered Gange v Sullivan (1966) 116 CLR 418, considered General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, considered Goggin v Majet [2016] 2 Qd R 401, distinguished Howe v Smith (1884) 27 Ch D 89, consi…
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
Citation 21 (Para 1)

…our pages (excluding a relevant chronology). [23]Transcript 1-14. [24] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129.…
Tropical Traders Ltd v Goonan [1964] HCA 20
Citation 22 (Para 1)

…sent or elect to continue with the contract and then claim that a right they previously had, was re-established. [79] Tropical Traders Ltd v Goonan (1964) 111 CLR 41 at 55 (per Kitto J). On the facts of that case however Kitto J considered the grant of an extension of time was not an election, in the sense of affirm…
Suttor v Gundowda Pty Ltd [1950] HCA 35
Citation 23

…0) 241 CLR 118, considered St George Bank Ltd v Wright [2009] QSC 337, considered Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, considered Taylor v Corporation of St Helens (1877) 6 Ch D 264, considered Theseus Exploration NL v Foyster (1972) 126 CLR 507, considered Thomas -v- Balanced Securities Limited [2012] 2 Qd…
Maynard v Goode [1926] HCA 4
Citation 24 (Para 1)

…laintiff. [56] Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 37 per Mason J at 551 and 552 and Gibbs CJ at 541; See also Maynard v Goode (1926) 37 CLR 529 per Isaacs J at 541; Yule v Smith [2012] NSWCA 191 at para [81]; [57]Para 37 of the outline of argument of the respondent plaintiff. [58]Para 39 of the o…
Lord Macnaghten said in Soper v Arnold (1889) 14 App Cas 429
Citation 25

…31 CLR 634, considered Scali Properties Pty Ltd Crittenden & Anor [2009] QSC 290, considered Soper v Arnold (1889) 14 App Cas 429, considered Spencer v Commonwealth (2010) 241 CLR 118, considered St George Bank Ltd v Wright [2009] QSC 337, considered Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, considered Taylor v Corpo…

Legislation Cited

Uniform Civil Procedures Rules 1999 (Qld) 171, 292, 293, 5
5 mentions (from Para 1)
Competition and Consumer Act 2010 (Cth) 232, 236, 237
4 mentions (from Para 1)
Civil Proceedings Act 2011 (Qld)
1 mention

CITATION:	Steer v Burchill [2017] QDC 206
PARTIES:	PATRICIA MONICA STEER (plaintiff) v GEOFFREY HENRY BURCHILL AND KAY VIVIENNE BURCHILL (defendants)
FILE NO/S:	230 of 2016
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	4 August 2017
DELIVERED AT:	Southport
HEARING DATE:	5 June 2017
JUDGE:	Muir DCJ
ORDERS:	1. There be summary judgment for the defendants on the plaintiff’s claim to an entitlement to the deposit in the sum of $195,000 paid by the defendants under the contract of sale entered into between the plaintiff and the defendants on 14 February 2016. 2. There be summary judgment for the defendants on their counterclaim as to their entitlement to the Deposit in the sum of $195,000. 3. The defendants are entitled to payment of the Deposit in the sum of $195,000. 4. The plaintiff is to cause the Deposit in the sum of $195,000 to be paid to the defendants by 4.00pm Friday 11 August 2017. 5. *The plaintiff is to pay interest on the sum of $195,000 from 1 July 2016 until 4 August 2017 in accordance with the Civil Proceedings Act* 2011 (Qld). 6. Paragraphs 23(c), 27A and 27B of the further amended statement of claim are struck out 7. The plaintiff pay the defendants’ cost of their counterclaim, the summary judgment application and the strike out application. 8. The parties are to confer and to provide a final minute of orders as agreed, by 4.00pm Tuesday 8 August 2017, including a calculation of the interest amount.** 9. If alternate orders as to the date for payment, interest and or costs are sought, the parties are to file written outlines of no more than 2 pages attaching the orders sought, by 4.00pm Wednesday 9 August 2017. If necessary the matter will then be relisted at a date to be fixed with leave to appear by telephone.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN QUEENSLAND – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL - LEGAL QUESTION - where plaintiff and defendants entered into a REIQ contract for sale of land containing a special condition that the contract was subject to the sale of another property owned by the defendants – where contract was terminated by the plaintiff -where plaintiff commenced proceedings for breach of contract and for misleading and deceptive conduct seeking an entitling to the deposit under the contract as well as a claim for damages for breach of contract and for misleading and deceptive conduct under the Competition and Consumer Act 2010 (Cth) - where defendants accept there is a need for a trial of the plaintiff’s claims for damages – where defendants contend that the plaintiff has no real prospects of establishing her claim to an entitlement to the deposit – where the defendants seek summary judgment on their counterclaim for the deposit – where facts not in dispute – whether legal issue ought to be determined summarily - whether defendants entitled to summary judgment on part of the…