Tonge v Living Gems Pty Ltd

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.