Sweet v Buzianczuk - [2002] QDC 193

DISTRICT COURT OF QUEENSLAND

CITATION: Sweet v Buzianczuk [2002] QDC 193
PARTIES: RICHARD PETER SWEET (plaintiff)
V
ROMAN STAN BUZIANCZUK (defendant)
FILE NO/S: 69/1998
DIVISION: District Court
PROCEEDING: Trial
DELIVERED ON: 3 July 2002
DELIVERED AT: Maroochydore
HEARING DATE: 25-26 June 2002
JUDGE: K S Dodds DCJ
ORDER: Declare the agreement made on or about 13 May 1997
ought be specifically performed and carried into
execution and adjudge the same accordingly.
Order the defendant forthwith deliver to the solicitor for
the plaintiff all documents, executed as required by the
Queensland Fish Management Authority, to effect the
transfer of the Primary Commercial Fishing Boat Licence
with the Boat Marks FFGD with all endorsements
thereon held by him to the plaintiff.
Order the parties have liberty to apply.
Order the defendant pay the plaintiff’s costs of and incidental to the proceeding.
CATCHWORDS: CONTRACTS – DISCHARGE, BREACH AND
DEFENCES TO ACTION FOR BREACH –
PERFORMANCE - where a written agreement existed for the
sale of plaintiff’s vessel to defendant and for the sale of
defendant’s fishing licence to plaintiff - where another
written agreement provided plaintiff to lease the use of the
fishing licence to defendant for 12 months - acknowledged
and agreed that plaintiff would hold a lien over vessel until
defendant paid balance purchase price, lease payments,
insurance premium, and interest - vessel was in seaworthy
condition prior to sale - defendant repaired and modified
vessel – defendant abandoned vessel - defendant has never
paid any money to plaintiff nor transferred the fishing licence
back to plaintiff after 12 months - whether plaintiff was
aware of any defect in vessel or misled defendant prior to
sale.
Axelsen & Ors v O’Brien (1949) 80 CLR 219
COUNSEL: S J English for plaintiff
SOLICITORS: Paul Pattison for plaintiff
Defendant: self-represented

In this proceeding the plaintiff claimed specific performance of a contract between the plaintiff and the defendant made partly orally and partly in writing on or about 13 May, 1997; further or alternatively, a declaration the plaintiff is the beneficial owner of a fishing licence bearing registered symbols FFGD and endorsements L1, L3+1, C1, N1, N6, and C3 and that the defendant as trustee holds the licence on trust for the plaintiff; an order the licence be transferred to the plaintiff; alternatively, damages for breach of contract, interest, and costs.
The plaintiff was the owner of a 8.49 metre boat “An Tamara” (the vessel) which he had purchased in October 1995 in Victoria for $30 000.00. At the time of purchase there was a certificate of survey from the Marine Board of Victoria over the vessel operational until 16 December, 1995 for its use within 15 miles of the Victorian coast.
In June 1996, a bargain was struck between the plaintiff and the defendant for the sale of the vessel to the defendant for $35 000.00. The initial approach leading to the bargain came from the defendant. That bargain was the subject of a written sale agreement between the parties prepared by 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 Sweet v Buzianczuk

Details

AGLC: Sweet v Buzianczuk [2002] QDC 193
Case: [2002] QDC 193
Decision Date: 3/07/2002

CaseChat Overview and Summary

The matter of Sweet v Buzianczuk involved a dispute between the parties regarding the specific performance of an agreement dated 13 May 1997. The court was tasked with determining whether the agreement should be specifically enforced. This case arose out of a contract for the sale of property, where the buyer, Sweet, sought to enforce the agreement against the seller, Buzianczuk.

The primary legal issue before the court was whether the contract was clear and unambiguous enough to warrant specific performance. Specifically, the court needed to ascertain if the terms of the agreement were sufficiently defined and if there was any ambiguity that could prevent the court from enforcing the contract. Additionally, the court had to consider whether there were any valid defences raised by the seller that could preclude specific performance.

In delivering its judgment, the court found that the agreement was clear and unambiguous, and thus, the terms were sufficiently defined for specific performance. The court dismissed the seller's defences, finding them to be without merit. Consequently, the court ruled that the agreement should be specifically performed and ordered that it be carried into execution accordingly. This decision mandated that the seller, Buzianczuk, must complete the sale of the property as per the terms of the contract.

Orders

Orders of the court

Declare the agreement made on or about 13 May 1997

ought be specifically performed and carried into

execution and adjudge the same accordingly.

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

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CITATION:	Sweet v Buzianczuk [2002] QDC 193
PARTIES:	RICHARD PETER SWEET (plaintiff) V ROMAN STAN BUZIANCZUK (defendant)
FILE NO/S:	69/1998
DIVISION:	District Court
PROCEEDING:	Trial
DELIVERED ON:	3 July 2002
DELIVERED AT:	Maroochydore
HEARING DATE:	25-26 June 2002
JUDGE:	K S Dodds DCJ
ORDER:	Declare the agreement made on or about 13 May 1997 ought be specifically performed and carried into execution and adjudge the same accordingly.
Order the defendant forthwith deliver to the solicitor for the plaintiff all documents, executed as required by the Queensland Fish Management Authority, to effect the transfer of the Primary Commercial Fishing Boat Licence with the Boat Marks FFGD with all endorsements thereon held by him to the plaintiff.
Order the parties have liberty to apply.
Order the defendant pay the plaintiff’s costs of and incidental to the proceeding.
CATCHWORDS:	CONTRACTS – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – PERFORMANCE - where a written agreement existed for the sale of plaintiff’s vessel to defendant and for the sale of defendant’s fishing licence to plaintiff - where another written agreement provided plaintiff to lease the use of the fishing licence to defendant for 12 months - acknowledged and agreed that plaintiff would hold a lien over vessel until defendant paid balance purchase price, lease payments, insurance premium, and interest - vessel was in seaworthy condition prior to sale - defendant repaired and modified vessel – defendant abandoned vessel - defendant has never paid any money to plaintiff nor transferred the fishing licence back to plaintiff after 12 months - whether plaintiff was aware of any defect in vessel or misled defendant prior to sale.
Axelsen & Ors v O’Brien (1949) 80 CLR 219
COUNSEL:	S J English for plaintiff
SOLICITORS:	Paul Pattison for plaintiff Defendant: self-represented