Trupkovic v. Furrer - [2007] QSC 27

SUPREME COURT OF QUEENSLAND

CITATION:

Trupkovic v Furrer [2007] QSC 027

PARTIES:

DENNIS TRUPKOVIC
(first plaintiff)
LESLEY CLOUGH
(second plaintiff)
v
EDMUND MARTIN FURRER
(first defendant)
LOTTI FURRER
(second defendant)

FILE NO/S:

BS884/07

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

16 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2007

JUDGE:

Mackenzie J

ORDER:

1.         It is declared that on the true construction of cl 10 of the special conditions of the contract for sale of land dated 25 August 2006 between the plaintiffs and the defendants whereby the defendants agreed to sell the property situate at and known as 32 Netherby Rise, Sunrise Beach in the State of Queensland and described as Lot 264 on SP 184089, the clause was solely for the benefit of the plaintiff purchasers;

2.         It is declared that on the true construction of the contract and in the events which have happened, the plaintiffs were entitled to waive the benefit of special condition 10 insofar as it related to the sale of their unit at 8/56 Duke Street, Sunshine Beach within five months of the date of the contract;

3.         It is declared that on the true construction of the contract and in the events which have happened, the defendants were not entitled to terminate the contract under special condition 10 insofar as it related to the sale of the plaintiffs’ unit at 8/56 Duke Street, Sunshine Beach within five months of the date of the contract;

4.         The counter-application by the respondents is dismissed.

5.         Unless submissions are delivered to my Associate within seven days of this order seeking a different costs order, it is ordered that the defendants pay the plaintiffs’ costs of and incidental to the application.

CATCHWORDS:

CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER – MATTERS ARISING BETWEEN CONTRACT AND CONVEYANCE – CONDITIONS OF SALE – GENERALLY – Where contract of sale conditional upon sale of the applicant’s unit within five months of the date of the contract – where contract did not provide for date of completion – where purchaser waived benefit of the special condition – whether the special condition was solely for the benefit of the purchaser – whether request to vary contract amounted to election – whether notice to complete was adequate

Balog v Crestani (1975) 132 CLR 289, cited
Donaldson v Bexton [2006] QCA 559, distinguished
Gange v Sullivan (1966) 116 CLR 418, cited
Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26, cited
Koikas v Green Park Constructions Pty Ltd [1970] VR 142, cited
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623, considered
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537, cited
Sargent v ASL Developments Ltd (1974) 131 CLR 634, cited
Suttor v Gundowda Pty Ltd (1950) 81 CLR 41, cited

COUNSEL:

L A Stephens for the applicant
D A Skennar for the respondent

SOLICITORS:

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 Trupkovic v. Furrer

Details

AGLC: Trupkovic v Furrer [2007] QSC 27
Case: [2007] QSC 27
Decision Date: 16 February 2007

CaseChat Overview and Summary

The case of Trupkovic v. Furrer was heard by the Queensland Land Court and involved a dispute between the plaintiff, Mr. Trupkovic, and the defendant, Mr. Furrer. The matter arose from a contract of sale where the defendants agreed to sell a property to the plaintiffs, subject to certain conditions, including the sale of the plaintiffs’ unit within a specified period. The key issue was whether the special condition regarding the sale of the unit was for the exclusive benefit of the purchaser and if the purchaser had the right to waive this condition. Additionally, the court had to determine whether the defendants could terminate the contract due to the failure to meet the condition and if the notice to complete the sale was adequate.

The court examined the contract's terms, specifically clause 10, which was intended to be for the benefit of the purchaser. The court concluded that the clause was indeed for the exclusive benefit of the purchaser, allowing the plaintiffs to waive it. The court further found that the request to vary the contract did not constitute an election to terminate the contract, and the notice to complete the sale was sufficient under the circumstances. The court dismissed the counter-application by the defendants and ordered that the defendants pay the plaintiffs’ costs of the application unless the defendants sought a different costs order within seven days.

In summary, the court ruled in favor of the plaintiffs, declaring that the special condition was solely for the benefit of the purchaser, the purchaser could waive the condition, and the defendants were not entitled to terminate the contract due to the failure to sell the unit within the specified period. The court also dismissed the counter-application by the defendants and ordered that they pay the plaintiffs’ costs unless a different costs order was sought.

Orders

Orders of the court

1. It is declared that on the true construction of cl 10 of the special conditions of the contract for sale of land dated 25 August 2006 between the plaintiffs and the defendants whereby the defendants agreed to sell the property situate at and known as 32 Netherby Rise, Sunrise Beach in the State of Queensland and described as Lot 264 on SP 184089, the clause was solely for the benefit of the plaintiff purchasers;

2. It is declared that on the true construction of the contract and in the events which have happened, the plaintiffs were entitled to waive the benefit of special condition 10 insofar as it related to the sale of their unit at 8/56 Duke Street, Sunshine Beach within five months of the date of the contract;

3. It is declared that on the true construction of the contract and in the events which have happened, the defendants were not entitled to terminate the contract under special condition 10 insofar as it related to the sale of the plaintiffs’ unit at 8/56 Duke Street, Sunshine Beach within five months of the date of the contract;

4. The counter-application by the respondents is dismissed.

5. Unless submissions are delivered to my Associate within seven days of this order seeking a different costs order, it is ordered that the defendants pay the plaintiffs’ costs of and incidental to the application.

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

Full text does not contain this section.

CITATION:	Trupkovic v Furrer [2007] QSC 027
PARTIES:	DENNIS TRUPKOVIC (first plaintiff) LESLEY CLOUGH (second plaintiff) v EDMUND MARTIN FURRER (first defendant) LOTTI FURRER (second defendant)
FILE NO/S:	BS884/07
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	16 February 2007
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2007
JUDGE:	Mackenzie J
ORDER:	1. It is declared that on the true construction of cl 10 of the special conditions of the contract for sale of land dated 25 August 2006 between the plaintiffs and the defendants whereby the defendants agreed to sell the property situate at and known as 32 Netherby Rise, Sunrise Beach in the State of Queensland and described as Lot 264 on SP 184089, the clause was solely for the benefit of the plaintiff purchasers; 2. It is declared that on the true construction of the contract and in the events which have happened, the plaintiffs were entitled to waive the benefit of special condition 10 insofar as it related to the sale of their unit at 8/56 Duke Street, Sunshine Beach within five months of the date of the contract; 3. It is declared that on the true construction of the contract and in the events which have happened, the defendants were not entitled to terminate the contract under special condition 10 insofar as it related to the sale of the plaintiffs’ unit at 8/56 Duke Street, Sunshine Beach within five months of the date of the contract; 4. The counter-application by the respondents is dismissed. 5. Unless submissions are delivered to my Associate within seven days of this order seeking a different costs order, it is ordered that the defendants pay the plaintiffs’ costs of and incidental to the application.
CATCHWORDS:	CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER – MATTERS ARISING BETWEEN CONTRACT AND CONVEYANCE – CONDITIONS OF SALE – GENERALLY – Where contract of sale conditional upon sale of the applicant’s unit within five months of the date of the contract – where contract did not provide for date of completion – where purchaser waived benefit of the special condition – whether the special condition was solely for the benefit of the purchaser – whether request to vary contract amounted to election – whether notice to complete was adequate Balog v Crestani (1975) 132 CLR 289, cited Donaldson v Bexton [2006] QCA 559, distinguished Gange v Sullivan (1966) 116 CLR 418, cited Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26, cited Koikas v Green Park Constructions Pty Ltd [1970] VR 142, cited Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623, considered Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537, cited Sargent v ASL Developments Ltd (1974) 131 CLR 634, cited Suttor v Gundowda Pty Ltd (1950) 81 CLR 41, cited
COUNSEL:	L A Stephens for the applicant D A Skennar for the respondent
SOLICITORS: