Yarrum Equities Pty Ltd v McConville

[2011] QDC 219

[2011] QDC 219

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 2995 of 2008

YARRUM EQUITIES PTY LTD ACN 097 272 841	Plaintiff/Applicant
and
MARK ANDREW MCCONVILLE and TRACEY LEE MCCONVILLE	Defendants/Respondents

SOUTHPORT

DATE 22/08/2011

ORDER

HIS HONOUR:  This is an application by the plaintiff for summary judgment against the defendants.  The plaintiff says the defendants have no real prospect of successfully defending the plaintiff's claim and there is no need for a trial of the claim.

The plaintiff and the defendants entered into a contract dated the 5th of September 2007.  The defendants say this was a contract for the sale of a piece of land and a house to be built on the land.

The contract, for one reason or another, did not proceed.  Each party alleges against the other that the relevant party had the right to terminate the contract.  A second contract was entered into and it is dated the 13th of November 2007.  Again it did not proceed to completion and each party alleges that the relevant party had the right to terminate the contract.

There is a third contract mentioned in the affidavits filed on the hearing of this application.  That is a contract that was completed in the early part of September 2008, however that was a contract between the plaintiff and other people who became the buyers of the subject property; the property being a property at 51 Settlers Circuit, Mount Cotton.

The defendants have sworn an affidavit by the male defendant.  He claims that when he entered into the first contract dated 5 September 2007 the seller's agent had been informed that the defendants required to sell a property in Victoria.  The male defendant says the agent asked them not to worry about that and a special condition to protect themselves was not inserted into the contract.

However it does appear such a clause was inserted in the contract dated 5 September 2007.  It is clause 28.  However I do not make any adverse finding against the defendants on this application today because of that statement in the male defendant's affidavit.

Nevertheless it is an issue raised by the defendants that the contract had, as part of the background, this condition of the contract being subject to and conditional upon the sale of their Victorian property.

That is one issue.  The other issue is that the defendants say the property was to be constructed in a proper and workmanlike manner or words to that effect.  There is exhibited a building report and the building report concludes that there was a defect and this is what called the most notable defect, it is poor drainage to the top side of the property and extensive improvement in the report is said to be required.  There were also safety issues about double-hung windows and loose balustrade cables which were to be rectified as soon as possible.  There were also some secondary components that may require immediate attention, for example, plaster repairs in hallway ceilings, although priority, the report says, should be given to more structural components and safety issues as opposed to aesthetic elements to satisfy the structural integrity and safety of the building.

The defendants say that they made complaints about these defects and they were never rectified.  They made these complaints to the plaintiff and they were not rectified.  Eventually possession was gained by the plaintiff of the subject property, the defendants apparently having been in possession of the property subject to some arrangement or agreement, which is not clear on the material that I have before me.

Nevertheless there is a copy of a facsimile letter from Messrs Hatzis Lawyers on behalf of the defendants and this, for a number of reasons, purported to terminate the contract.  As I have said, the plaintiff alleges it had the right at all times to be free of the contracts, whichever it might be, between the plaintiff and the defendants.

Although there has been an amended defence and counterclaim filed on 23 June 2011, after the hearing that came on before her Honour Judge Kingham on the 15th of June 2011, in some respects it is not as elegant as one would like.

Nevertheless I consider it does raise triable issues that are supported by the sworn evidence of the male defendant on behalf or the defendants.  I have come to the view that this is a case where it cannot be said the defendants have no real prospect of successfully defending the claim and there is no need for a trial of the claim.  On the contrary, I consider there is a need for a trial of the claim and therefore the application for summary judgment is dismissed.

...

HIS HONOUR:  Application is made by the plaintiff for its costs since the 29th of March 2011 and up to and including 15 June 2011 to be paid by the defendants on the indemnity basis.  Those costs on the indemnity basis are also sought in respect of the application heard today the 22nd of August 2011.

MR KENNEDY:  Sorry, your Honour, I don't seek indemnity costs today.

HIS HONOUR:  Oh, you don't.

MR KENNEDY:  No.

HIS HONOUR:  Oh, well, I'll withdraw that and I leave that to be part of my reasons then.  I'll fix that up.

Regarding those costs that I've first mentioned, it seems to me the defendants have failed to obtain their file from their former solicitors.  The matter has been before this Court since the 21st of December 2010 when his Honour Judge Noud made orders.  The matter came on again before his Honour Judge Robin on 29 March 2011 when his Honour made orders.  There was a consent adjournment on that day with the parties able to apply on seven days notice and for the costs thrown away to be paid by the defendants.

The matter came on before her Honour Judge Kingham on the 15th of June 2011 and clearly the defendants were late in the provision of their material.  The affidavit of the male defendant was filed the day before on the 14th of June 2011 and a comprehensive amended defence was not available and was filed after her Honour heard the matter on the 15th of June 2011.  The amended defence and counterclaim was filed on the 23rd of June 2011.

It seems to me that the defendants have been slow in complying with their obligations to ensure that these proceedings proceed expeditiously and without delay.  I consider in the circumstances that the plaintiff's costs since the 29th of March 2011 and up to and including the 15th of June 2011 should be paid by the defendants and paid on the indemnity basis.

The costs of today's application heard on the 22nd of August 2011 I order be costs in the cause.

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