Stephens and Stephens v Coorey, Coorey and Stephens

[1995] QCA 419

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 114 of 1995

Brisbane

[Stephens & Anor v. Coorey & Anor]

BETWEEN:

GARY BOWDEN STEPHENS
and
ROBYN BETTY STEPHENS

(Plaintiffs) Appellants

AND:

RAYMOND JOHN COOREY
and
CHERYL GRACE COOREY

(First Defendants)

Respondents

AND:

DALE ELIZABETH STEPHENS

(Second Defendant)

Second Respondent

McPherson JA
Thomas J

Williams J

Judgment delivered 15/09/1995
Further order delivered 27/10/1995
Further order of the Court

FURTHER ORDERED BY THE COURT THAT THE RESPONDENTS RAYMOND JOHN COOREY AND CHERYL GRACE COOREY BE GRANTED AN INDEMNITY CERTIFICATE PURSUANT TO S. 15 OF THE APPEAL COSTS FUND ACT 1973.

Coorey.

Solicitors:  Bruce S Dulley for the appellants.

Hearing Date: 30 August 1995

IN THE COURT OF APPEAL	[1995] QCA 419
SUPREME COURT OF QUEENSLAND

Appeal No. 114 of 1995

Brisbane

Before McPherson J.A.
Thomas J.
Williams J.

[Stephens v. Coorey]

BETWEEN

GARY BOWDEN STEPHENS and ROBYN BETTY STEPHENS

(Plaintiffs) Appellants

AND

RAYMOND JOHN COOREY and CHERYL GRACE COOREY

(First Defendants) First Respondents

AND

DALE ELIZABETH STEPHENS

(Second Defendant) Second Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 15th day of September 1995

The relevant facts and contractual provisions are set out in the reasons for

judgment of G.N. Williams J., which I have had the advantage of reading.

The critical question on appeal must be approached on the footing that

settlement of the contract for the sale of units 3 and 4 had been fixed to take place on

11 October 1989, and that time was of the essence of that date. It resulted from a

notice to complete dated 27 September 1989, which had been given by solicitors for

the vendors, meaning by that Mr Gary Stephens and Mrs Dale Stephens.

In fact, so far as the evidence goes, nothing happened on 11 October 1989.

Neither party tendered or even appeared at the place appointed for settlement. On the

other hand, no one took any steps to terminate the contract in consequence of its

non-performance on 11 October 1989. On the contrary, both sides went on acting as if

the contract remained on foot. The solicitors for the parties, or the clerks to those

solicitors, proceeded with arrangements for settlement to take place on 13 October

1989. That was consistent only with the continued existence of the contract, and it must

be considered an election against rescinding it. Once made and communicated, such

an election could not be retracted : Tropical Traders Ltd. v. Geonan (1964) 111 C.L.R.

41, 54-55; Havenbar Pty. Ltd. v. Butterfield (1974) 133 C.L.R. 449, 457-458.

To make time once more of the essence, both a fresh date for completion and a

fresh notice making it of the essence were required. Such a notice was given by the

vendors on 27 October 1989 requiring settlement on 3 November and making time of

the essence. The purchasers, meaning Mr & Mrs Coorey, refused to complete on that

date, and they did not do so. They took the view that the contract had already been

terminated in consequence of the vendors' failure to complete on 13 October 1989.

The vendors thereupon elected to determine the contract for non-completion on 3

November 1989.

The vendors must succeed on this appeal unless the purchasers are correct in

their contention that they were entitled to and did bring the contract to an end as a result

of the vendors' non-completion on 13 October. The difficulty they face is that, once 11

October passed, time ceased to be of the essence of the contract. If they then elected

(as they did) not to exercise whatever right they had to rescind or terminate the contact,

it continued on as a contract which the parties were bound to complete within a

reasonable time. Simply agreeing on a new date for settlement would not itself have been sufficient to make time of the essence of that date, so as to justify a party not in

default at the new date in rescinding the contract.

That being so, it was not open to the purchasers to rescind for non-completion by

the vendors on 13 October. Their only means of escape from this difficulty would be to

show that the date for settlement had been deferred from 11 October to 13 October

without affecting the essentiality of time. In that event, time would have continued to be

of the essence of the deferred date for settlement. But there was no evidence at the

trial to show that this is what happened. All that appears is that 11 October came and

went without anybody either fixing a new date for settlement or taking steps to put an

end to the contract for non-completion on 11 October.

In these circumstances the contract remained in existence until the vendors

communicated their election to rescind it in consequence of the purchasers' failure to

complete on 3 November 1989 following the vendors' notice of 27 October fixing that as

the date for settlement and making time of the essence. The result appears somewhat

artificial from the standpoint of the purchasers; but it follows from their having adopted

the attitude, incorrectly as it now turns out, that they had validly terminated the contract

for non-completion on 13 October 1989. Before us, Mr Coorey complained that he had

been acting on legal advice at the time. So, no doubt, were the vendors. The difference

is that on the material before us the vendors' advice was correct. In hindsight, the better

course might have been to settle when called upon to do so on 3 November 1989.

I agree with the conclusion of G.N. Williams J. as to the quantum of damages

recoverable by Robyn Betty Stephens as assignee of the male plaintiff's interest in the

transaction. Orders should be made in the form set out in his Honour's reasons on this

appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 114 of 1995

Brisbane

Before McPherson JA

Thomas J Williams J

[Stephens v. Coorey]

BETWEEN:

GARY BOWDEN STEPHENS and
ROBYN BETTY STEPHENS

(Plaintiffs) Appellants

AND:

RAYMOND JOHN COOREY and
CHERYL GRACE COOREY

(First Defendants) First Respondents

AND:

DALE ELIZABETH STEPHENS

(Second Defendant) Second Respondent

REASONS FOR JUDGMENT - THOMAS J

Judgement delivered 15 September 1995

I agree with the reasons in this matter of McPherson JA and Williams J.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 114 of 1995

Brisbane

Before McPherson JA

Thomas J Williams J

[Stephens & Anor v. Coorey & Anor]

BETWEEN:

GARY BOWDEN STEPHENS
and
ROBYN BETTY STEPHENS

(Plaintiffs) Appellants

AND:

RAYMOND JOHN COOREY
and
CHERYL GRACE COOREY

(First Defendants)

Respondents

AND:

DALE ELIZABETH STEPHENS

(Second Defendant)

Second Respondent

FURTHER ORDER OF THE COURT

Judgment delivered 15/09/1995

Further order delivered 27/10/1995

Judgment allowing the appeal in this matter was handed down on 15 September 1995. The respondents were ordered to pay the appellant's taxed costs of the action and of the appeal. The respondents, Mr and Mrs Coorey, have now applied for an indemnity certificate under s. 15 of the Appeal Costs Fund Act 1973. In the circumstances the court is of the view that such a certificate should be granted.

The court therefore orders that the respondents Raymond John Coorey and Cheryl Grace Coorey be granted an indemnity certificate pursuant to s. 15 of the Appeal Costs Fund Act 1973.