Urban Homes Pty Ltd v Emmett - [2014] QDC 282

DISTRICT COURT OF QUEENSLAND

CITATION:	Urban Homes Pty Ltd v Emmett & Anor [2014] QDC 282
PARTIES:	URBAN HOMES PTY LTD (appellant) v RYAN EMMETT and NERISSA EMMETT (respondents)
FILE NO/S:	2200/14
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	12 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	8 December 2014
JUDGE:	Samios DCJ
ORDER:	1. The appeal is dismissed.
CATCHWORDS:	APPEAL - CONTRACT - whether contract subject to finance - whether contract subject to implied term - whether contract void for uncertainty - whether the parties terminated the contract Cases Allesch v Maunz (2000) 203 CLR 172, para 23 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, 283 Devries v Australian National Railways Commission (1992-1993) 177 CLR 472, 479 Fox v Percy (2003) 214 CLR 118, para 25 Marminta Pty Ltd v French [2003] QCA 541, para 22 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 Plummer v GPD Marina Village & Ors [2011] QSC 9 Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1967-1968) 118 CLR 429, 437
COUNSEL:	P Evans, solicitor, for the appellant G Coveney for the respondents
SOLICITORS:	McKays Solicitors Pty Ltd for the appellant S J Gurnsey and Company for the respondents

The appellant is a builder. The respondents are a married couple who wanted to build a house on land purchased by them at 2 Perregreen Street, Doolandella.

On 30 March 2011 the appellant and the respondents signed a contract for the appellant to build the house for $273,947.

The contract provided for payment of a deposit in the sum of $13,697.

Further, item 11 in the schedule to the contract provided in answer to the question “Is this contract conditional on the owner obtaining loan approval from a financial institution?” the answer “Yes.” In this item, the loan approval date was stated to be 8 March 2011. That date was 22 days prior to the signing of the contract.

There is no dispute prior to signing the contract the appellant provided the respondents with a variety of quotations, plans and other documents. Further, there is no dispute the respondents did not pay the deposit to the appellant and did not proceed with the contract.

It is also not in dispute that the respondents entered into a contract with another builder, Val Eco Homes Pty Ltd. That contract was dated 6 June 2011. The price for the construction of the house with Val Eco Homes Pty Ltd as the builder was $226,000.
By a claim filed in the Magistrates Court on 16 February 2012 the appellant claimed from the respondents:
1.damages, as a liquidated debt for the unpaid deposit, the sum of $13,697; and
2.damages pursuant to clause 22.4 of the contract, and at common law, all loss, costs, expenses and damages in connection with each of the breaches of the contract, and the termination, namely an amount equal to approximate profit on…

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: [2014] QDC 282
Decision Date: 12 December 2014

CaseChat Overview and Summary

Urban Homes Pty Ltd sought a declaration that it was entitled to terminate a contract for the sale of land to Emmett on the basis that the contract was void for uncertainty. Emmett opposed the application, arguing that the contract was valid and enforceable, and that Urban Homes was in breach of contract. The primary judge found in Emmett's favour, and Urban Homes appealed. The appeal centred on the interpretation and enforceability of the contract, specifically whether the contract was subject to finance, whether it contained an implied term regarding finance, whether it was void for uncertainty, and whether the parties had effectively terminated the contract.

The court examined whether the contract was subject to finance, considering whether the words used in the contract indicated a condition precedent or a mere representation. The court also considered whether there was an implied term regarding finance, and whether such a term could be implied into the contract. The court further assessed whether the contract was void for uncertainty, evaluating whether the terms of the contract were sufficiently clear and precise to be enforceable. Finally, the court examined whether the parties had effectively terminated the contract, considering whether there was evidence of an agreement to terminate the contract and whether such a termination was valid and binding.

The court found that the contract was not subject to finance, and that there was no implied term regarding finance. The court also found that the contract was not void for uncertainty, and that the parties had not effectively terminated the contract. The appeal was dismissed, and the primary judge's decision was affirmed.

The appeal is dismissed.

Orders

Orders of the court

1. The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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