Urban Homes Pty Ltd v Emmett - [2015] QCA 150

[2015] QCA 150

COURT OF APPEAL

FRASER JA
GOTTERSON JA
ANN LYONS J

Appeal No 2586 of 2015
DC No 2200 of 2014

URBAN HOMES PTY LTD Applicant
ACN 095 093 208

RYAN EMMETT
NERISSA EMMETT Respondents

BRISBANE

THURSDAY, 20 AUGUST 2015

JUDGMENT

FRASER JA: The applicant builder sued the respondents in the Magistrates Court for liquidated and general damages pursuant to provisions of a building contract. The respondents contended they had brought the contract to an end, pursuant to a provision which made the contract subject to finance. The issues included whether the contract was subject to the respondents obtaining the necessary finance, and if so, by what date. The Magistrate dismissed the applicant’s claim. That decision was affirmed on appeal to the District Court.

The applicant applies for an extension of time within which to apply for leave to appeal from the decision in the District Court. The respondents accept that the delay is not substantial and is explained. The application is opposed only upon the ground that the proposed appeal lacks merit. Because the decision of the primary judge was given on appeal, the proposed appeal to this Court is not by way of rehearing, and the Court has no power to draw inferences which are inconsistent with the findings below. See District Court of Queensland Act 1967, sections 118(3) and 119(1), and see Gobus v Queensland Police Service [2013] QCA 172.

At least on one view, the proposed appeal is limited to questions of law. See Gobus at [5] and Commissioner of Police v Al Shakarji [2013] QCA 319 at [75]. Presumably with that authority in mind, the applicant contends only for errors in law in the District Court. There are two suggested legal errors. The first suggested error is described in the draft notice of appeal as follows: “By not following the decision of the Supreme Court in Plummer v GPD Marina Village [2011] QSC 9 to the effect that, as a matter of law, the entering into a contract which possesses a date for finance, the performance of which pre-dates a contract, results in a concluded agreement making no provision for finance.”

In argument, the solicitor for the applicant confirmed that the applicant’s contention was that Plummer v GPD Marina Village Pty Ltd established that entry into a contract with a subject of finance clause which has a date for notification of finance which precedes the date of the contract results, as a matter of law, in the contract not being subject to finance. Reference to Justice Cullinane’s reasons in Plummer confirms the absence of such a startling proposition.

In Plummer, the argument was that the date for finance having predated the contract, the Court should imply that finance was to be obtained within a reasonable time, which, in the circumstances of that case, should be taken to be any time until the completion date. Justice Cullinane rejected the argument, finding that it was not possible to accept such an implication…

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.

Keep reading for free

Create a free CaseChat account to read Urban Homes Pty Ltd v Emmett and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] QCA 150
Decision Date: 20 AUGUST 2015

CaseChat Overview and Summary

Urban Homes Pty Ltd, a builder, brought an action against Ryan and Nerissa Emmett in the Magistrates Court, seeking liquidated and general damages for breach of a building contract. The Emmetts contended that they had lawfully terminated the contract, as it was conditional upon obtaining finance. The primary dispute was whether the contract was indeed contingent on the Emmetts securing the necessary finance and, if so, the specific date by which this finance needed to be obtained. The Magistrates Court dismissed Urban Homes' claim, a decision that was subsequently upheld by the District Court. Urban Homes now seeks an extension of time to appeal this decision to the Court of Appeal.

The central legal issues in this case revolve around the interpretation of the contract terms, particularly the finance condition clause, and whether the primary judge and the Magistrate correctly applied the law in their respective decisions. Urban Homes argues that the District Court erred in its interpretation of the finance condition clause and that the Magistrate's reasons were inadequate. The Emmetts counter that Urban Homes' appeal lacks merit and that the District Court's decision correctly applied the law to the facts.

The Court of Appeal found that Urban Homes' appeal was based on a misapprehension of the law as articulated in Plummer v GPD Marina Village Pty Ltd. The Court noted that the primary judge had correctly distinguished the present case from Plummer, based on the specific facts and contractual terms. Urban Homes' argument that the contract was not contingent on finance was rejected as contrary to the evidence. Furthermore, the Court found that the primary judge had adequately considered the evidence and correctly applied the principles in BP Refinery (Westernport) Proprietary Limited v Shire of Hastings. The Court concluded that there was no sufficient basis for granting leave to appeal, as the case hinged on its unique facts. Therefore, the application for an extension of time to appeal was refused.

In summary, the Court of Appeal upheld the decision of the District Court, finding no merit in Urban Homes' proposed grounds of appeal. The Court declined to grant Urban Homes an extension of time to appeal, effectively bringing an end to the litigation concerning the building contract dispute between the parties.

Orders