Tonge v Living Gems Pty Ltd - [2016] QSC 102

SUPREME COURT OF QUEENSLAND

CITATION:

Tonge v Living Gems Pty Ltd [2016] QSC 102

PARTIES:

JAMES MALCOLM TONGE AS TRUSTEE FOR THE BARR TRUST

(plaintiff)

v
LIVING GEMS PTY LTD A.C.N. 010 186 151

(defendant)

FILE NO:

3114 of 2016

DIVISION:

Trial

PROCEEDING:

Miscellaneous Application (Civil)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

4 May 2016

JUDGE:

Atkinson J

ORDERS:

1. Summary judgment be entered in favour of the defendant on the plaintiff’s claim pursuant to rule 293 of the Uniform Civil Procedure Rules 1999 (Qld);

2. Caveat number 717116653 be removed pursuant to section 127 of the Land Title Act 1994 (Qld);

3. The plaintiff’s application is dismissed; and

4. The plaintiff is to pay the defendant’s costs of and incidental to the defendant’s application and the proceeding on an indemnity basis pursuant to clause 9.7 of the contract between the parties dated 28 November 2014.

CATCHWORDS:

REAL PROPERTY – FIXTURES TO LAND – DEGREE OF ANNEXATION – RESTING ON OWN WEIGHT – where the plaintiff alleges the defendant was in breach of contract for the sale of land by removing large piles of rocks from that land – where the evidence showed that the rocks were moved onto the land for storage or stockpiling, not by nature but by human intervention – whether the contract for the sale of land included the rocks resting on it.

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the defendant submitted that the plaintiff had no reasonable prospect of demonstrating that the rocks were purchased as part of the contract for the sale of land and sought summary judgment – whether the plaintiff had no real prospect of succeeding on all or part of his claim – whether there was no need for a trial of the claim or part of the claim

EQUITY – GENERAL PRINCIPLES – MISTAKE – EQUITABLE REMEDIES – RECTIFICATION – OTHER PARTICULAR CASES – where plaintiff sought leave to amend his claim and statement of claim to reflect what was said to be the common intention of the parties that the rocks formed part of the land – where there was no evidence from which to infer such a common intention – whether the plaintiff would be able to demonstrate by clear and convincing proof that the contract should be rectified

Land Title Act 1994 (Qld), s 127

Uniform Civil Procedure Rules 1999 (Qld), r 293

Dearden v Evans (1839) 5 M&W 10, cited
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, followed
Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603, cited
J M Kelly (Project Builders) Pty Ltd v Toga Development No 31 Pty Ltd (No 5) [2010] QSC 389, cited
Mills v Stokman (1967) 116 CLR 61, cited
Ryledar Pty Ltd…

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 Tonge v Living Gems Pty Ltd

Details

AGLC: Tonge v Living Gems Pty Ltd [2016] QSC 102
Case: [2016] QSC 102
Decision Date: 12 May 2016

CaseChat Overview and Summary

In Tonge v Living Gems Pty Ltd, the plaintiff, Mr. Tonge, brought an action against Living Gems Pty Ltd for the removal of large piles of rocks from land that was sold to him by the defendant. The central issue was whether the contract for the sale of the land included the rocks resting on it. The case was heard in the Queensland Civil and Administrative Tribunal, where the defendant sought summary judgment arguing that the plaintiff had no reasonable prospect of demonstrating that the rocks were included in the sale of the land.

The court examined the evidence provided and determined that the rocks were not a fixture to the land but were instead moved onto the land for storage or stockpiling by human intervention. The court also found that there was no evidence of a common intention that the rocks formed part of the land, and thus, there was no basis to rectify the contract. As a result, the court held that the plaintiff had no real prospect of succeeding on his claim and that there was no need for a trial.

The court granted summary judgment in favor of the defendant and ordered the removal of the caveat placed on the land. Additionally, the court dismissed the plaintiff's application to amend his claim and dismissed his application to rectify the contract. The plaintiff was also ordered to pay the defendant's costs on an indemnity basis. This decision underscores the importance of clear contractual terms and the need for evidence to support claims in real property disputes.

Orders

Orders of the court

1. Summary judgment be entered in favour of the defendant on the plaintiff’s claim pursuant to rule 293 of the Uniform Civil Procedure Rules 1999 (Qld);

2. Caveat number 717116653 be removed pursuant to section 127 of the Land Title Act 1994 (Qld);

3. The plaintiff’s application is dismissed; and

4. The plaintiff is to pay the defendant’s costs of and incidental to the defendant’s application and the proceeding on an indemnity basis pursuant to clause 9.7 of the contract between the parties dated 28 November 2014.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would accordingly refuse leave to amend the claim. Conclusion The defendant is entitled to summary judgment and, accordingly, the maintenance of the caveat is not warranted and it should be removed.Orders1. Summary judgment be entered in favour of the defendant on the plaintiff’s claim pursuant to rule 293 of the Uniform Civil Procedure Rules 1999 (Qld);2. Caveat number 717116653 be removed pursuant to section 127 of the Land Title Act 1994 (Qld);3. The plaintiff’s application is dismissed; and4. The plaintiff is to pay the defendant’s costs of and incidental to the defendant’s application and the proceeding on an indemnity basis pursuant to clause 9.7 of the contract between the parties dated 28 November 2014.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Tonge v Living Gems Pty Ltd [2016] QSC 102
PARTIES:	JAMES MALCOLM TONGE AS TRUSTEE FOR THE BARR TRUST (plaintiff) v LIVING GEMS PTY LTD A.C.N. 010 186 151 (defendant)
FILE NO:	3114 of 2016
DIVISION:	Trial
PROCEEDING:	Miscellaneous Application (Civil)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 May 2016
DELIVERED AT:	Brisbane
HEARING DATE:	4 May 2016
JUDGE:	Atkinson J
ORDERS:	1. Summary judgment be entered in favour of the defendant on the plaintiff’s claim pursuant to rule 293 of the *Uniform Civil Procedure Rules* 1999 (Qld); 2. Caveat number 717116653 be removed pursuant to section 127 of the *Land Title Act* 1994 (Qld); 3. The plaintiff’s application is dismissed; and 4. The plaintiff is to pay the defendant’s costs of and incidental to the defendant’s application and the proceeding on an indemnity basis pursuant to clause 9.7 of the contract between the parties dated 28 November 2014.
CATCHWORDS:	REAL PROPERTY – FIXTURES TO LAND – DEGREE OF ANNEXATION – RESTING ON OWN WEIGHT – where the plaintiff alleges the defendant was in breach of contract for the sale of land by removing large piles of rocks from that land – where the evidence showed that the rocks were moved onto the land for storage or stockpiling, not by nature but by human intervention – whether the contract for the sale of land included the rocks resting on it. PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the defendant submitted that the plaintiff had no reasonable prospect of demonstrating that the rocks were purchased as part of the contract for the sale of land and sought summary judgment – whether the plaintiff had no real prospect of succeeding on all or part of his claim – whether there was no need for a trial of the claim or part of the claim EQUITY – GENERAL PRINCIPLES – MISTAKE – EQUITABLE REMEDIES – RECTIFICATION – OTHER PARTICULAR CASES – where plaintiff sought leave to amend his claim and statement of claim to reflect what was said to be the common intention of the parties that the rocks formed part of the land – where there was no evidence from which to infer such a common intention – whether the plaintiff would be able to demonstrate by clear and convincing proof that the contract should be rectified Land Title Act 1994 (Qld), s 127 Uniform Civil Procedure Rules 1999 (Qld), r 293 Dearden v Evans (1839) 5 M&W 10, cited Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, followed Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603, cited J M Kelly (Project Builders) Pty Ltd v Toga Development No 31 Pty Ltd (No 5) [2010] QSC 389, cited Mills v Stokman (1967) 116 CLR 61, cited Ryledar Pty Ltd…