Toepfer v Hackett

[1998] QSC 197

IN THE SUPREME COURT

OF QUEENSLAND  No. 7641 of 1998

Brisbane

[Toepfer v Hackett]

BETWEEN:

KARIN TOEPFER

Plaintiff

AND:

PETER HACKETT

Defendant

REASONS FOR JUDGMENT - HELMAN J.

Judgment delivered 24 September 1998

1  This is an application under Order 18A of the Rules of the Supreme Court.  The defendant has appeared to a writ of summons endorsed with a claim for specific performance of an agreement for the sale of property with an alternative claim for damages. The plaintiff seeks summary judgment for specific performance of the agreement on the ground that the defendant has no defence to the action.  The plaintiff alleges that an agreement was made on 2 July this year by which she agreed to purchase and the defendant agreed to sell the defendant’s shares in a company called Sanctuary Cove Dry Cleaners Pty Limited for $105,000.00.  The plaintiff’s case is that, in accordance with the agreement, she paid $5,000.00 of the purchase price and tendered the balance, which was payable on or before 31 July 1998, on that day, but the defendant has wrongly refused to accept the balance and complete the agreement.  The plaintiff says she has refused to accept the defendant’s repudiation of the agreement.  Those allegations are sworn to in affidavits read on behalf of the plaintiff.

1. The defendant resists the application contending that although there was an agreement between him and the plaintiff made on 2 July 1998 for the sale of the defendant’s shares or interests in the company it was not as alleged by the plaintiff.  Whereas the plaintiff says its terms were all in writing and contained in a document dated the day of the agreement, the defendant says the agreement was partly in writing and partly oral.  He says the document relied upon by the plaintiff was the written part of the agreement, but there were further oral terms the effect of which was to set the price for the defendant’s shares or interests at $105,000.00 with an adjustment for half of the profits of the company to the date of settlement, 31 July 1998.  The defendant says further that there was a term of the agreement that should the plaintiff refuse or neglect to purchase his shares or interests in the company she would sell her shares or interests in the company to him on terms substantially the same as those agreed upon for his sale to her.  The defendant alleges that the plaintiff has repudiated the contract and counter-claims for specific performance of it and in the alternative for damages.

2. It suffices to say that on the facts sworn to by the defendant that there was such an agreement as he alleges.  Of particular relevance is paragraph 18 of an affidavit filed on 11 September.  From that I am satisfied that there is an issue which ought to be tried, and so the defendant should have leave to defend the action.  I shall invite further submission on the form of the order to be made and costs.