Timothy Neil McQueen v Leduva Pty Limited - [2008] NSWSC 284

CITATION: Timothy Neil McQueen v Leduva Pty Limited [2008] NSWSC 284

HEARING DATE(S): 25 & 26 March 2008

JUDGMENT DATE :
3 April 2008

JUDGMENT OF: Hammerschlag J

DECISION: Verdict for defendant vendor

CATCHWORDS: CONTRACT - Vendor - purchaser suit - whether purchaser's conduct amounted to repudiation - Notice to Complete - whether period given sufficient to make time of the essence - right to recover deposit

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW)
Environmental Planning and Assessment Regulations 2000 (NSW)

CASES CITED: Caleo Bros Pty Ltd v Lyons Bros (Aust) Pty Ltd (1980) NSW ConvR 55-004
Castle Hill Tyres Pty Ltd v Luxspice Pty Ltd (1996) 7 BPR 14,959
Sindel v Georgiou (1984) 154 CLR 661
McNally v Waitzer [1981] 1 NSWLR 294
Halkidis v Bugeia [1974] 1 NSWLR 423
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
Afovos Shipping Co SA v Pagnan [1983] 1 WLR 195
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245
Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Lohar Corp Pty Ltd v Dibu Pty Ltd (1976) 1 BPR 9177
TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130
Alghussein Establishment v Eton College [1991] All ER 267

PARTIES: Timothy Neil McQueen
Leduva Pty Limited (ACN 001 777 206)

FILE NUMBER(S): SC 5914/2006

COUNSEL: D.L. Warren (Plaintiff)
F.P. Hicks (Defendant)

SOLICITORS: Carneys Lawyers (Plaintiff)
Cadmus Lawyers (Defendant)

- 28 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

HAMMERSCHLAG J

3 APRIL 2008

5914/2006 TIMOTHY NEIL MCQUEEN -V- LEDUVA PTY LIMITED ACN 001 777 206

JUDGMENT

Introduction

1 HIS HONOUR: This is a contest as to which of the defendant vendor or the plaintiff purchaser was entitled to terminate a contract (“the Contract”) entered into between them on 12 July 2004 for the purchase of lot 53 in an unregistered strata plan, being part of the land in Folio Identifier 121/1030021 ("the Property") for $456,500. The land is at Henderson Road, Alexandria in the State of New South Wales.

2 It is common cause that the Contract is no longer on foot.

3 The defendant purported to terminate the Contract on 3 October 2006. The plaintiff asserts that the defendant was not entitled to do so and that its termination was a repudiation which the plaintiff validly accepted on 10 October 2006.

4 There is no issue that, if the defendant was not entitled to terminate, its action amounted to a repudiation that the plaintiff would have been entitled to accept.

5 The central issue is whether the defendant was, on 3 October 2006, entitled to terminate.

6 By summons issued on 22 November 2006, the plaintiff seeks a bare declaration that it validly terminated the Contract.

7 By cross-summons issued on 26 March 2007, the defendant claims $45,650 or, in the alternative, damages. The amount is the 10…

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: [2008] NSWSC 284
Decision Date: 3 April 2008

CaseChat Overview and Summary

The matter before the court involved Timothy Neil McQueen, the plaintiff, and Leduva Pty Limited, the defendant. The dispute centred around a contract for the sale of property, where the plaintiff sought to recover a deposit paid to the defendant, arguing that the defendant had repudiated the contract. The case was heard in the Supreme Court of Queensland. The plaintiff claimed that the defendant's conduct amounted to a repudiation of the contract, which entitled the plaintiff to terminate the contract and recover the deposit. The defendant, on the other hand, denied any repudiation and argued that the plaintiff was not entitled to terminate the contract and recover the deposit.

The primary legal issue before the court was whether the defendant's conduct constituted a repudiation of the contract. Another issue was whether the period given in a Notice to Complete was sufficient to make time of the essence in the contract. The court was also required to determine whether the plaintiff was entitled to recover the deposit if the defendant had repudiated the contract. The court considered the terms of the contract, the conduct of the parties, and relevant case law to resolve these issues.

The court found that the defendant's conduct did not amount to a repudiation of the contract, as there was no clear indication of an inability or unwillingness to perform the contract. The court also held that the period given in the Notice to Complete was not sufficient to make time of the essence in the contract. As a result, the plaintiff was not entitled to terminate the contract and recover the deposit. The court dismissed the plaintiff's claim, and the defendant was not required to return the deposit. The court's decision was based on a detailed analysis of the contract terms, the conduct of the parties, and relevant case law.

Orders