Moussa v Eather [2025] QSC 156

Hillhouse Legal Partners for the applicant/defendant

• [1] On 10 March 2024 Mellissa Eather agreed to sell her property at Tamborine to Neveen Moussa (the contract). The agreement was recorded in the standard REIQ form of contract. On the date for settlement, Ms Moussa did not tender the balance of the purchase price - she claimed that Ms Eather was in breach of various obligations under the contract. After the time for settlement had passed, Ms Eather purported to terminate the contract on the basis that Ms Moussa had failed to "complete Settlement in accordance with Essential Terms of the contract". Notwithstanding that it was Ms Moussa who declined to settle, she commenced proceedings for, among other things, specific performance of the contract. Ms Eather has filed a defence and counterclaim.
• [2] In this application, Ms Eather seeks summary judgment on the claim against her (r 293 Uniform Civil Procedure Rules) and on her counterclaim against the plaintiff (r 292 UCPR).

• [3] The dispute between the parties arises out of some of the Special Conditions in the contract and the terms of a variation of the contract.
• [4] The Special Conditions in the contract included:

"5. The following items shall be included in the sale:

1. The tiny house including all its indoor and outdoor furniture and fridge

1. The benchtops and shelving in the shed[1]

1. All decorative planters, plant pots and garden sculptures/artwork (with the exclusion of 1 pot and budda head)
2. All chickens (15 in total)
3. The storage container near rear paddock
4. The two rubber swans in the dam

1. The Seller shall at its own expense: a) Empty the septic tank b) install compliant smoke alarms and provide compliance certificate
2. The buyer has the option to include the 2 goats at no additional cost, with an acceptance by 5 pm Thursday 14th."

• [5] By letter of 18 March 2024 the solicitors for Ms Moussa informed the solicitors for Ms Eather that they had instructions that the parties had reached agreement regarding the issues raised in the building and pest inspection report. They offered, on a "without prejudice" basis, to treat the building and pest inspection condition of the contract as having been satisfied subject to these Additional Conditions:

"1. The contract price is to be reduced by $5,000, to be adjusted at settlement;

1. The seller will provide the buyer (prior to settlement) with a list of items located at the property that the seller is willing to sell, and the buyer will have first option to purchase any of the so listed items;
2. The seller will cooperate with the buyer in relation to any questions the buyer may have regarding the property, the animals on the property and handover of the property;
3. The seller will remove the pool table in the rumpus room prior to settlement;
4. The seller will provide proof of completion of Special Condition 6 of the contract prior to settlement;
5. The seller will continue to follow through (prior to settlement) with the existing insurance claim in relation to damage caused to the irrigation pipes by a falling tree, and damage to the front gate auto systems;
6. The seller will have the (currently) incomplete electrical works [namely the live wire at the back of the shed is to be terminated and a generator switch is to be connected] completed by a qualified tradesman prior to settlement and provide evidence of same;
7. Confirmation that the tiny house will be handed over at settlement in turn key condition with all of its inside and outside contents (including, but not limited to bedding, towels, decor, indoor & outdoor furniture, and all chattels presently inside and outside the tiny house)."

• [6] Ms Eather's solicitors responded on 19 March in these terms:

"Please note our client is agreeable to the items noted in your correspondence on the basis the contract is unconditional today.

Whilst the condition itself it [sic] quite ambiguous - for completeness, please confirm your clients instructions in relation to special condition 4."

• [7] In her Statement of Claim Ms Moussa seeks several orders including:

"An order for specific performance of the contract, namely that the Defendant effect settlement of the contract within 7 business days of the date of any order so made by this court, and subject to:

1. The property being in the same condition it was when the parties entered into the contract (to be verified via a satisfactory pre-settlement inspection of the property by the Plaintiff or the Plaintiff and any nominee or nominees of the Plaintiff no less than 2 business days prior to settlement).
2. That the Defendant maintain adequate and sufficient insurance to cover the property for loss, damage and public liability pending settlement.[2]
3. The Defendant providing the Plaintiff with evidence satisfactory to the Plaintiff, within 3 business days of the date of this order, that the property had been maintained by the Defendant in the condition it was in when the contract was entered into between the parties, including, but not limited to the mowing of the entire property, maintenance of gardens and fruit trees, with the property to be handed over by the Defendant to the Plaintiff in a clean and properly maintained condition at settlement."

• [8] An order of the type sought by Ms Moussa would be unlikely to be made in that form. But the nature of the relief sought was not the subject of argument.

• [9] In [14] of the Statement of Claim, it is alleged that the "terms and conditions of the agreement of 19 March 2024 have formed part of the terms and conditions of the contract since 19 March 2024."
• [10] That is denied by Ms Eather who pleads that the "terms of the 19 March 2024 [sic] were incorporated as warranties or intermediate terms in the contract, not conditions or essential terms."
• [11] There was also some uncertainty about the date for settlement. It is most likely that it was extended from 22 to 24 April but neither party has treated this as determinative. The vendor says that she was ready, willing and able to settle on either date. The purchaser says that the vendor was in breach on both dates.
• [12] Ms Moussa refused to settle because, on her case, the defendant was in breach of contract. The alleged breaches are listed in [22] of the Statement of Claim:

"i. The 2 goats included in the contract price were no longer at the property;

1. Only some basic mowing of the property had been completed by the Defendant, namely at the front of the residence. The full front and back of the residence and the paddocks had not been mowed. Fallen trees and debris had been left on the property by the Defendant.
2. The items required to be repaired under the Defendant's insurance claim in accordance with condition 6 of the agreement of 19 March 2024 had not been repaired, particulars of which are as follows:

1. The septic tank/irrigation pipe had been disconnected and left on the ground, not repaired;

1. The front gate was not functioning, could not be operated and had to be manually opened, thus posing a safety risk;

iv. The property had not been left in the condition it was in when the Plaintiff entered into the contract, namely the property was unvacuumed and uncleaned particulars of which are as follows:

1. old furniture, including cider bottles, paint cans, various clutter and rubbish had been left in the shed by the Defendant, therefore the Defendant failed to deliver vacant possession of the property to the Plaintiff as per the terms of the contract;

1. the garage floor was left in a dirty condition;

1. the side patio floor was left in a dirty condition;

1. the patio ceiling was full of moths and insects;

1. the general state of the property was unclean, and riddled with dead insects;

vi. No map of the fruit trees, their number, type and location had been provided to the Plaintiff by the Defendant with the exception of 4 labelled trees;

vii. A 240 volt electrical cable running from the tiny house was untrenched and hung along a fence posing significant safety risk of fire to the property and electrocution, thus making the property unsafe;

1. The seller had removed items from the tiny house, which were included in the contract price, namely cushions, throws, doormats, bathroom accessories.

• [13] In [23] of the Statement of Claim it is alleged that the "terms and conditions of the contract" had been breached. And, in addition, that "no electrical Safety Certificate had been provided by the Defendant to the Plaintiff, nor had the Defendant provided the Plaintiff with any proof of repairs or otherwise by a licensed electrical contractor".
• [14] In her Defence Ms Eather admits some of the assertions and denies others. For the purposes of this application, though, she accepts the assertions and that they amounted to breaches of the contract but argues that they were not breaches of essential terms.

• [15] The major dispute between the parties concerns the proper characterisation of the Special Conditions and the Additional Conditions.
• [16] As I have noted above, Ms Moussa pleads in her Statement of Claim[3] that the Additional Conditions "formed part of the terms and conditions of the contract since 19 March 2024". That is denied by Ms Eather on the ground that they were incorporated as "warranties or intermediate terms in the contract, not conditions or essential terms."[4]

[17] Ms Moussa, in her Statement of Claim, appears to treat all the breaches (which are admitted for the purposes of this application by Ms Eather) as breaches of conditions of the contract. It has frequently been observed that the word "condition" when used with respect to a contract can encompass several different meanings. The weight of authority is that a better description for the type of condition which, when breached, gives rise to a right to terminate, is an "essential term". That is the characterisation adopted in clause 9.1 of the contract[5].

• [18] There is a definition of "essential term" in clause 1.1(v) of the contract:

" 'Essential Term' includes, in the case of breach by:

(i) the Buyer: clauses 2.2, 2.5(1), 2.5(5), 5.1 and 6.1; and

(ii) the Seller: clauses 2.5(5), 5.1, 5.3(1)(a)-(e), 5.5 and 6.1;

but nothing in this definition precludes a Court from finding other terms to be essential".

• [19] Clause 2.5(1) is defined to be an essential term. It provides:

"On the Settlement Date, the Buyer must pay the Balance Purchase Price by bank cheque as the Seller or the Seller's Solicitor directs."

• [20] Ms Moussa did not pay the balance purchase price on the settlement date.
• [21] Whether a term is an essential term or an intermediate term has been the subject of recent consideration by the Court of Appeal of Western Australia. In Cougar Metals NL v Richore Pty Ltd[6], the court said:

"[118] Whether a term of a contract is an essential term, or an innominate or intermediate term, is a question of construction. The test of essentiality, as Jordan CJ said in Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd , is whether it appears, from the general nature of the contract considered as a whole or from some particular term or terms, that the promise is of such importance to the promisee that the promisee would not have entered into the contract unless it had been assured of a strict or a substantial performance of the promise, as the case may be, and that this ought to have been apparent to the promisor.

[119] As the plurality of the High Court said in Koompahtoo, Jordan CJ's judgment in Tramways Advertising v Luna Park must now be read in light of later developments in the law. In Koompahtoo, Gleeson CJ, Gummow, Heydon and Crennan JJ said that:

It is the common intention of the parties, expressed in the language of their contract, understood in the context of the relationship established by that contract and (in a case such as the present) the commercial purpose it served, that determines whether a term is 'essential', so that any breach will justify termination.

[120] The plurality in Koompahtoo referred with approval to the statement of Lord Diplock in Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd that:

'... the question whether a breach by one party relieves the other of further performance of his obligations cannot always be answered by treating a contractual undertaking as either a 'condition' or a 'warranty'. Of some stipulations 'all that can be predicated is that some breaches will and others will not give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract; and the legal consequences of a breach of such an undertaking, unless provided for expressly in the contract, depend upon the nature of the event to which the breach gives rise'."

• [22] It was not the subject of argument, but it is difficult to understand how, for example, an option to purchase two goats could be regarded as an essential term of the contract. Likewise, it is not obvious that failure to empty a wheelie bin would constitute a breach of an essential term. Nevertheless, these were relied upon by Ms Moussa.

• [23] Ms Eather argues that there has been no breach of any essential term and relies on deemed admissions of the allegations made by her in the Defence.
• [24] In [26A][7] of the Statement of Claim Ms Moussa pleads:

"As at 4pm on 24 April 2024 the seller had not remedied the Defendant's breaches of the contract as pleaded in paragraphs 22 and 23 of this Statement of Claim."

"[26A] As to the second numbered paragraph 26 of the statement of claim, the defendant:

(a) admits that she had not remedied the alleged breaches; but

(i) the alleged breaches were not [of]conditions or essential terms of the contract;

(ii) the alleged breaches if proved would not entitle the plaintiff to terminated [sic] the contract;

(iii) in those premises, the plaintiff was not entitled to refuse to settle on 24 April 2024."

• [26] In her Reply and Answer, Ms Moussa pleads:

"[25] As to the allegations in paragraph 26A of the Defence the plaintiff repeats and relies on the allegations of fact made in paragraph 24 of the Statement of Claim and asserts that as a material fact:

(i) The defendant's breaches were [of] conditions of the contract;

(ii) The defendant's breaches would have entitled the plaintiff to terminate the contract;

(iii) The plaintiff was entitled to refuse to settle on 24 April 2024."

• [27] Paragraph [24] of the Statement of Claim reads:

"Via correspondence between the parties legal representatives on 22 April 2024, the Plaintiff offered to allow the Defendant a two day settlement extension to 24 April 2024 to allow the Defendant to comply with the Defendant's obligations under the terms of the contract."

• [28] Ms Eather relies on r 166(1) of the UCPR. It provides:

_"(1) An allegation of fact made by a party in a pleading is taken to be admitted by an opposite party required to plead to the pleading unless - _

(a) the allegation is denied or stated to be not admitted by the opposite party in a pleading; or

(b) rule 168 applies."

• [29] Ms Eather argues that the allegations made by her in [26A] of the Defence are neither denied nor are they "not admitted" as is required by r 166(1) of the UCPR. Therefore, she says, they are taken to be admitted. While the words deny, denial or not admitted are not used, the terms of [25] of the Reply directly contradict the assertions to which they are replying. They are, therefore, arguably able to be described as denials. But that does not resolve the matter.
• [30] If they are denials, then r 166(4) and (5) apply:

"(4) A party's denial or nonadmission of an allegation of fact must be accompanied by a direct explanation for the party's belief that the allegation is untrue or can not be admitted.

(5) If a party's denial or nonadmission of an allegation does not comply with subrule (4), the party is taken to have admitted the allegation."

• [31] The matters pleaded in the Reply do not constitute a direct explanation because they do not directly explain why the allegation is untrue[8]. Thus, even if the terms of [25] of the Reply constitute a denial, the allegations in [26A] are still deemed to be admitted.
• [32] Ms Eather argues that, while all the alleged breaches by her are admitted for this application, Ms Moussa is taken to have admitted that:

(i) none of the breaches were of essential terms,

(ii) Ms Eather was ready, willing and able to settle, and

(iii) she was not entitled to refuse to settle on 24 April 2024.

• [33] Ms Moussa did not seek to amend her pleading or withdraw the deemed admissions. The admissions, which dismantle any cause of action that might have been available, lead to the conclusion that there is no realistic prospect of success and no need for a trial of the claim[9].

• [34] Ms Eather, relying upon the failure to pay the balance purchase price, terminated the contract under cl 9.1(1) of the contract on 24 April 2024. Where a seller terminates, cl 9.4 becomes available. It provides:

If the Seller terminates this contract under clause 9.1, it may do all or any of the following:

• [35] In her counterclaim, Ms Eather alleges that she has suffered loss and damage as a result of Ms Moussa's breach of contract and seeks to recover them.
• [36] In [34] of the Counterclaim she alleges:

(a) the defendant as seller was ready, willing and able to perform her interdependent settlement obligations; and

(b) the plaintiff did not tender for settlement;

(c) the plaintiff did not pay the Balance Purchase Price."

• [37] In the Reply and Answer the following appears:

"[34] The plaintiff denies the statements of fact made in paragraphs 34(a) and (b) of the counterclaim and admits paragraph 34(c) of the counterclaim."

• [38] Rule 166 of the UCPR has the effect that, because r 166(4) was not observed, Ms Moussa is taken to have admitted [34(a)] and [34(b)] of the Counterclaim.
• [39] The deemed admissions made by Ms Moussa lead to these conclusions:

(a) notwithstanding the breaches referred to above, she was obliged to pay the balance of the purchase price on the settlement date,

(b) she did not pay the balance of the purchase price, and

(c) Ms Eather was ready, willing and able to perform her obligations under the contract.

• [40] It follows from those conclusions that Ms Eather lawfully terminated the contract and is entitled to claim damages arising out of the breach by Ms Moussa. The allegations of loss have been properly put in contest in the Reply and Answer. It follows, then, that there should be judgment for the defendant on the counterclaim with damages to be assessed.

• [41] I will make orders under r 293 and r 292 of the UCPR dismissing the claim, giving judgment on the counterclaim with damages to be assessed and I will make directions for the assessment to take place.
• [42] Ms Eather seeks her costs on an indemnity basis. I will hear the parties on that.

"(1) If the Seller or Buyer, as the case may be, fails to comply with an Essential Term, or makes a fundamental breach of an intermediate term, the Seller (in the case of the Buyer's default) or the Buyer (in the case of the Seller's default) may affirm or terminate this contract under this clause.

(2) Clause 9.1 does not limit any other right or remedy of the parties including those under this contract or any right at law or in equity."

[6] [2024] WASCA 36

[7] There are two paragraphs in the Statement of Claim bearing the number [26]. I have adopted the numbering used by the Defendant and assigned [26A] to the second numbered [26].

[8] Cape York Airlines Pty Ltd v QBE Insurance (Australia) Ltd [2008] QSC 302; [2009] 1 Qd R 116 at [27]- [30]

[9] Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [2005] 2 Qd R 232