SUPREME COURT OF QUEENSLAND
CITATION:
Zuecker v Bruggmann (No 3) [2017] QSC 259
PARTIES:
NICOLETTA IRENE ZUECKER
(plaintiff)
v
RUTH BRUGGMANN
(defendant)
FILE NO/S:
SC No 8751 of 2012
DIVISION:
Trial Division
PROCEEDING:
Trial
DELIVERED ON:
9 November 2017
DELIVERED AT:
Brisbane
HEARING DATE:
2 November 2015 – 5 November 2015; 17 October 2016 – 20 October 2016; 11 November 2016
JUDGE:
Bond J
ORDER:
The orders of the Court are that:
[1] In respect of the plaintiff’s claims other than the claim referred to in order [3], there should be judgment for the plaintiff against the defendant in the sum of $1,440,629.30.
[2] The parties have liberty to apply within 7 days of the date of this judgment in relation to the interest calculations forming part of that amount.
[3] The parties are directed to bring in minutes of an order to be made consistent with these reasons for judgment in respect of the amount claimed by the plaintiff for rates, together with interest thereon, within 14 days of the date of this judgment.
[4] The defendant’s counterclaim is dismissed.
CATCHWORDS:
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – where the plaintiff and the defendant alleged various contracts between them concerning the ownership, maintenance and development of a parcel of land – whether any of the alleged contracts were formed – whether the plaintiff or the defendant is entitled to relief for breach of contract
RESTITUTION – CLAIMS ARISING OUT OF INEFFECTIVE CONTRACTS – GENERALLY – TOTAL FAILURE OF CONSIDERATION OR AGREED RETURN – where the plaintiff, in the alternative to her contractual claims, seeks restitution of a payment of $750,000 from the defendant on the basis that the consideration for the payment has totally failed – whether the plaintiff is entitled to restitution of the payment – whether the plaintiff is entitled to a constructive trust or an equitable lien in aid of any restitutionary right
Civil Proceedings Act 2011 (Qld)
Supreme Court Act 1995 (Qld)
Baltic Shipping Co v Dillon (1993) 176 CLR 344, cited
Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567, cited
Baumgartner v Baumgartner (1987) 164 CLR 137, cited
Break Fast Investments Pty Ltd v Perikles Giannopoulos (also known as Perry Giannopoulos) (No 5) [2011] NSWSC 1508, cited
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353, cited
Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498, cited
Heydon v NRMA [2001] NSWCA 445, cited
In the matter of Wan Ze Property Development (Aust) Pty Ltd (2012) 90 ACSR 593, cited
King Tide Company Pty Ltd v Arawak Holdings Pty Ltd [2017] QCA 251, cited
Leasing Centre (Aust) Pty Ltd v Shepard [2011] FCA 443, cited
Lexane Pty Limited v Highfern Pty Ltd [1985] 1 Qd R 446, cited
Lombardo v Bahnan [2014] VSC 410, cited
Muschinski v Dodds (1985) 160 CLR 583, cited
QNI Resources Pty Ltd v Park [2016] QSC 222
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- AGLC
- Zuecker v Bruggmann (No 3) [2017] QSC 259
- Case
- [2017] QSC 259
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether any contracts were formed between the parties and, if so, which party was entitled to relief for breach. The court also had to determine whether Zuecker was entitled to restitution for a payment of $750,000 made to Bruggmann on the basis that the consideration for the payment had totally failed. Additionally, the court needed to decide if Zuecker was entitled to a constructive trust or an equitable lien in aid of any restitutionary right.
The court examined the email exchanges between the parties' solicitors, particularly those dated 12 and 13 April 2007, to assess the formation of any contractual agreements. It found that while there were indications of potential agreements, the evidence did not conclusively establish the formation of any binding contracts. The court further held that Zuecker was not entitled to restitution of the $750,000 payment as there was no total failure of consideration. The court dismissed Bruggmann's counterclaim for specific performance.
The court ordered that Zuecker was to receive judgment against Bruggmann for $1,440,629.30, less certain amounts to be calculated, with the parties to provide details within a specified timeframe. The defendant's counterclaim was dismissed.
Orders
Orders of the court
The orders of the Court are that:
[1] In respect of the plaintiff’s claims other than the claim referred to in order [3], there should be judgment for the plaintiff against the defendant in the sum of $1,440,629.30.
[2] The parties have liberty to apply within 7 days of the date of this judgment in relation to the interest calculations forming part of that amount.
[3] The parties are directed to bring in minutes of an order to be made consistent with these reasons for judgment in respect of the amount claimed by the plaintiff for rates, together with interest thereon, within 14 days of the date of this judgment.
[4] The defendant’s counterclaim is dismissed.
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
On 12 April 2007, there was an email exchange between the two sets of lawyers revealing, on the one hand, that the defendant was interested in pursuing the loan option which she had discussed with her lawyers and, on the other hand, that the plaintiff was interested in buying from the defendant the defendant’s interest in the Property at a price to be agreed.[80](a)The defendant’s solicitor Mr Baldwin wrote to the plaintiff’s solicitor Mr Lynn in the following terms:Reference is made to your facsimile of 11 April 2007.We have never provided advise [sic] to Ms. Zucker and have made it very clear when she attended this office that we did not act for her in any respect whatsoever.My instructions are that your client will loan my client $1 million secured by my clients [sic] half of the subject property. Such loan to be at an interest of $1/year for a term of 20 years with a further option of 20 years. Does that accord with your instructions ??(b)Mr Lynn replied as follows (emphasis added):My instructions are that your client wishes to sell her interest in the property to my client at a consideration to be agreed ($million [sic] has been mentioned). My client is unaware of any loan proposal as set out in your email and instructs me that all of her discussions with your client have been with the object of purchasing your clients [sic] interest.Would you please ascertain from your client whether she wishes to sell her interest to my client and if so, on what terms. Alternatively, if your client does not wish to sell, what is proposed re the joint venture to develop the property?[80] Exhibit 60. I observe that the request made in the last sentence by the plaintiff’s lawyer is again a curious one, given the fact that if the plaintiff had in fact made the bargain she alleges in relation to the $750,000 payment made on 2 November 2006, there was already an agreement in place in relation to the joint venture to develop the Property and one would have expected that to be said. It is also a little hard to reconcile this request with the notion that the $750,000 had been paid substantially for the purpose that it (whether alone or with some other monies) would be spent on the development. If that had been the position, given the size of the payment one would have expected the email to reference what was proposed to occur in relation to the $750,000 which the plaintiff had already provided to the defendant for that purpose. On the other hand, perhaps the author contemplated that phrasing the enquiry in non-combative terms might be more conducive to the contemplated negotiation. On 13 April 2007, the defendant sent written instructions to her solicitors to proceed to prepare an agreement documenting a loan transaction along the lines of that previously discussed between them.[81] Her instructions suggested that she had that day discussed the matter with the plaintiff and that building activities on site were on hold.[81] Exhibit 61. On 23 April 2007, the defendant’s solicitors emailed[82] the plaintiff’s solicitors with draft documentation (including a Joint Venture Agreement and Mortgage) broadly to the effect which the defendant had requested. Mr Baldwin thought that his actions accorded with his instructions.[83] The enclosed Joint Venture Agreement provided for:(a)a condition precedent of a loan of $1 million by plaintiff to defendant secured by first registered mortgage over the Property;(b)5 exclusive use areas (A to E) and common property;(c)the plaintiff to provide all funds to complete the Project;(d)each of the plaintiff’s and defendant’s interest in the Property to benefit their estates in the event of death notwithstanding that it was held as joint tenants.[82] Exhibit 62.[83] T4-43 (20 October 2016).