Vujanovic v Musumeci - [2005] QSC 382

SUPREME COURT OF QUEENSLAND

CITATION:

Vujanovic v Musumeci & Anor [2005] QSC 382

PARTIES:

NED VUJANOVIC and SAMANTHA ALANA VUJANOVIC
(Plaintiff)
v
VINCENZO ROSARIO MUSUMECI and WANDA LESLEY HALL
(Defendants)

FILE NO/S:

76 of 2004

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

13 December 2005

DELIVERED AT:

Cairns

HEARING DATE:

17 November 2005

JUDGE:

Jones J

ORDER:

1. I order that the contract dated 26 September 2003 whereby the defendants agreed to sell to the plaintiffs residential property situated at 34 Pheasant Street, Bayview Heights and described as Lot 130 on RP 747634 County Nares, Parish of Cairns, Title Reference 21402073 be specifically performed within six weeks of today’s date unless some other date is agreed upon.

2. Subject to the receipt of written submissions within 14 days suggesting a different order I order that the defendants pay the plaintiffs’ costs of and incidental to the proceedings to be assessed on the standard basis.
3. I give the parties liberty to apply upon giving to the other parties 4 days notice of that intention.

CATCHWORDS:

CONVEYANCING – MATTERS ARISING BETWEEN CONTRACT AND CONVEYANCE – contract to sell property conditional on finance – notification of finance was to be in writing – purchasers had not given notice of finance at finance date – failure to notify of finance by finance date gave vendors the right to terminate subject to purchasers’ right to affirm the contract – whether vendors terminated the contract before purchasers affirmed it

Hill v Terry (1993) 2 QdR 640
Sutton v Gundowah Pty Ltd (1950) 81 CLR 418

Dougan v Ley (1946) 71 CLR 142

COUNSEL:

Mr C Ryall for the plaintiffs
Mr M Jonsson for the defendants

SOLICITORS:

V. J. Butler & Associates for the plaintiffs
MacDonnells for the defendants

By contract dated 26 September 2003 the defendants agreed to sell to the plaintiffs the residential property situated at 34 Pheasant Street, Bayview Heights and described as Lot 130 on RP 747634 County Nares, Parish of Cairns Title Reference 21402073. The contract was conditional upon the plaintiffs obtaining finance sufficient to complete the sale. The time within which that condition was to be satisfied was six weeks from the date of the contract (i.e. 7 November 2003). The date for completion of the contract was 5 January 2004.

On 21 November 2003 the defendants purported to terminate the contract pursuant to clause 3 its Standard Terms and Conditions, on the basis that the plaintiffs had failed to give notification of their having obtained finance.

By this action the plaintiffs seek specific performance of the contract contending that the required notification had been given and, in the alternative, that the defendants were not entitled to terminate the contract by reason of their unconscientious conduct.

Background facts

Prior to entering into the contract the parties had been close friends for approximately 10 years. They regularly visited each other’s homes. The female plaintiff and the female defendant met even more regularly because their places of…

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: [2005] QSC 382
Decision Date: 13 December 2005

CaseChat Overview and Summary

The case of Vujanovic v Musumeci involved a dispute over a contract for the sale of residential property in Bayview Heights. The plaintiffs, Vujanovic, entered into a contract with the defendants, Musumeci, to purchase a property under the condition that finance would be obtained. The contract specified that the purchasers were required to provide written notification of finance by a certain date. When the specified date arrived, the purchasers had not notified the vendors of the finance, which entitled the vendors to terminate the contract. However, the purchasers attempted to affirm the contract after the vendors had already terminated it. The issue before the court was whether the vendors had the right to terminate the contract before the purchasers affirmed it.

The court considered whether the failure to provide written notification of finance by the purchasers was a breach of the contract that entitled the vendors to terminate. The court noted that the contract explicitly required written notice and that the failure to provide such notice constituted a breach. However, the court also considered the effect of the purchasers' subsequent affirmation of the contract. The court concluded that the vendors had the right to terminate the contract before the purchasers affirmed it, as the breach of the contract by the purchasers entitled the vendors to terminate, and the subsequent affirmation did not affect the vendors' right to terminate.

The court ordered specific performance of the contract, directing the vendors to complete the sale of the property within six weeks unless another date was agreed upon. The court also ordered the vendors to pay the purchasers' costs of the proceedings, subject to any written submissions suggesting a different order. The parties were granted liberty to apply to the court for further orders.

This decision underscores the importance of strict compliance with contractual terms, particularly in relation to the notification of finance in property sale contracts. The court's emphasis on the need for written notification highlights the necessity for purchasers to adhere to the specific requirements of the contract to avoid potential termination by the vendors.

Orders

Orders of the court

1. I order that the contract dated 26 September 2003 whereby the defendants agreed to sell to the plaintiffs residential property situated at 34 Pheasant Street, Bayview Heights and described as Lot 130 on RP 747634 County Nares, Parish of Cairns, Title Reference 21402073 be specifically performed within six weeks of today’s date unless some other date is agreed upon.

2. Subject to the receipt of written submissions within 14 days suggesting a different order I order that the defendants pay the plaintiffs’ costs of and incidental to the proceedings to be assessed on the standard basis.

3. I give the parties liberty to apply upon giving to the other parties 4 days notice of that intention.

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:	Vujanovic v Musumeci & Anor [2005] QSC 382
PARTIES:	NED VUJANOVIC and SAMANTHA ALANA VUJANOVIC (Plaintiff) v VINCENZO ROSARIO MUSUMECI and WANDA LESLEY HALL (Defendants)
FILE NO/S:	76 of 2004
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	13 December 2005
DELIVERED AT:	Cairns
HEARING DATE:	17 November 2005
JUDGE:	Jones J
ORDER:	1. I order that the contract dated 26 September 2003 whereby the defendants agreed to sell to the plaintiffs residential property situated at 34 Pheasant Street, Bayview Heights and described as Lot 130 on RP 747634 County Nares, Parish of Cairns, Title Reference 21402073 be specifically performed within six weeks of today’s date unless some other date is agreed upon. 2. Subject to the receipt of written submissions within 14 days suggesting a different order I order that the defendants pay the plaintiffs’ costs of and incidental to the proceedings to be assessed on the standard basis. 3. I give the parties liberty to apply upon giving to the other parties 4 days notice of that intention.
CATCHWORDS:	CONVEYANCING – MATTERS ARISING BETWEEN CONTRACT AND CONVEYANCE – contract to sell property conditional on finance – notification of finance was to be in writing – purchasers had not given notice of finance at finance date – failure to notify of finance by finance date gave vendors the right to terminate subject to purchasers’ right to affirm the contract – whether vendors terminated the contract before purchasers affirmed it Hill v Terry (1993) 2 QdR 640 Sutton v Gundowah Pty Ltd (1950) 81 CLR 418 Dougan v Ley (1946) 71 CLR 142
COUNSEL:	Mr C Ryall for the plaintiffs Mr M Jonsson for the defendants
SOLICITORS:	V. J. Butler & Associates for the plaintiffs MacDonnells for the defendants