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[2024] QCA 147
General information, not legal advice.
Court of Appeal (Qld)
2024-08-13
Dalton JA and Wilson and Crowley JJ
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Royal Pines Projects Pty Ltd v Brightman [2024] QCA 147
PARTIES: ROYAL PINES PROJECTS PTY LTD / ACN 118 164 999 ATF BRISBANE CREDITS TRUST / (appellant) / v / ADAM BRIGHTMAN / (first respondent/not a party to the appeal) / JODIE BRIGHTMAN / (second respondent/not a party to the appeal) / MARY MAGGIE MAE CRUZ / (third respondent/not a party to the appeal) / RAYMOND CAVITE CRUZ / (fourth respondent/not a party to the appeal) / CAMERON ROBERTS / (fifth respondent/not a party to the appeal) / REBECCA ANNING / (sixth respondent/not a party to the appeal) / ADRIANA EUGENIA HERNANDEZ SILVA / (seventh respondent/not a party to the appeal) / JARRAD GLENN BUNT / (eighth respondent/not a party to the appeal) / JESSICA LEE DEMCHENKO / (ninth respondent/not a party to the appeal) / DIANNE MARYIA MASSEY / (tenth respondent/not a party to the appeal) / VISHENDRAN NAIDU / (eleventh respondent/not a party to the appeal) / B CORPORATION (QLD) PTY LTD / ACN 651 109 894 / (twelfth respondent/not a party to the appeal) / GEORGE STANLEY NEWBOLD / (thirteenth respondent/not a party to the appeal) / BRENDA ZHOYA / (fourteenth respondent/not a party to the appeal) / MICHAELA ERIKA MORELAND / (fifteenth respondent) / REMY ARRAN MORELAND / (sixteenth respondent) / KRISTIE-LEE ANNING / (seventeenth respondent/not a party to the appeal) / DESMOND LAFFY / (eighteenth respondent) / TRINA LAFFY / (nineteenth respondent) / CORNELIA CHRISTINE DAY / (twentieth respondent/not a party to the appeal) / COLIN JAMES BURTON / (twenty-first respondent/not a party to the appeal) / PERRIE BURTON / (twenty-second respondent/not a party to the appeal) / SILVANA TRPESKA / (twenty-third respondent/not a party to the appeal)
FILE NO/S: Appeal No 9265 of 2024
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane – [2024] QSC 149 (Applegarth J)
DELIVERED ON: Date of Order: 25 July 2024 / Date of Publication of Reasons: 13 August 2024
DELIVERED AT: Brisbane
HEARING DATE: 25 July 2024
JUDGES: Dalton JA and Wilson and Crowley JJ
ORDER: Date of Order: 25 July 2024 / The appeal is dismissed with costs.
CATCHWORDS: CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – where contracts for the sale of apartments “off the plan” contemplated the respondent buyers might borrow the purchase price from a financier – where the appellant seller was to give the buyers at least 14 days notice of settlement and the notice was to be given at a time reasonably determined by the seller – where the seller gave a notice of settlement – where the buyers requested access to the apartments to permit their valuer to perform a valuation for the purpose of obtaining finance – where the seller did not respond to the buyers’ requests for their valuers to inspect the apartments for seven days – where construction works prevented an inspection occurring for the same period – where the contract was not subject to finance – whether the primary judge erred by implying a term that each party co-operate to allow the other party the benefit of the contract so that the seller must respond promptly to requests so as to allow the buyer the full 14 days in which to provide access to a valuer / CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – where the primary judge found that the appellant’s delay in responding to the buyers’ requests to provide access to a valuer was unreasonable – whether the primary judge erred in finding the implied term was breached / CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CAUSATION – where the primary judge concluded there was a real risk of damage occurring in the future because the appellant’s breach delayed completion of the valuation reports, review of them by lenders, final approval of finance, and the actual provision of finance for settlement – whether the primary judge erred in concluding that there was sufficient evidence before him to grant injunctive and declaratory relief / Bensons Property Group Pty Ltd v Key Infrastructure Australia Pty Ltd [2021] VSCA 69, distinguished / Butt v M’Donald (1896) 7 QLJ 68, cited / Grieve v Enge [2006] QCA 213, considered / Holland v Jones (1917) 23 CLR 149; [1917] HCA 26, applied / Mackay v Dick (1881) 6 App Cas 251; [1881] UKLawRpAC 14, cited / Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596; [1979] HCA 51, applied / Simcevski v Dixon (2018) V Conv R 54-901; [2017] VSC 197, distinguished
COUNSEL: D B O'Sullivan KC, with H E Hadgraft, for the appellant / N H Ferrett KC, with A Choy, for the respondents
SOLICITORS: Hickey Lawyers for the appellant / Broadbeach Law Group for the respondents
DALTON JA: This is an appeal against declarations, and an injunction made on a final basis, on 12 July 2024 after a hearing in the applications list on 11 July 2024. The appeal hearing was expedited and took place on 25 July 2024. At the conclusion of the hearing the Court dismissed the appeal with costs. These are my reasons for joining in that order.
The appellant developer built an apartment block at the Gold Coast and sold the units in it “off the plan”. The contracts were all in identical terms and although there were 23 respondents and 15 contracts, the case was largely run on both sides (below and on appeal) as though there was only one set of legal and factual considerations which were common to all the contracts.
The contracts were the developer’s standard form contracts and referred to the appellant as “we” and the purchaser as “you”. They provided:“Settlement date” was defined to mean, “the date that is 14 clear days after (but not including) the date on which we give you written notice under clause 10.1”.At cl 8.5 it was provided that settlement “must not take place earlier than 14 days after we give you notice of plan registration”.“Plan registration” was defined to mean the registration of the plan of subdivision which would create the individual units in the building as lots.Clause 10 provided:
“10.1 We must give you written notice at any time (as reasonably determined by us) after we become aware of plan registration that a separate indefeasible title for the lot has been created.
10.2 Settlement of the contract is conditional upon plan registration and us giving you notice under clause 10 .1.
…”
Time was of the essence of the contract.
Clause 46.1 of the contract provided:
“We disclose to you that:
the nature of risks we assume or are required to address in undertaking the development (including the lot), establishing the scheme and complying with our obligations under this contract include those matters referred to in the definition of project risks in clause 2;
we have discretionary rights under this contract which we consider reasonably necessary to mitigate project risks and to protect our legitimate interests in undertaking the development (including the lot) and the establishment of the scheme; and
you do not have the benefit of the same discretionary rights provisions as we do under this contract and your rights to object to the exercise of those discretionary rights by us is limited under this contract (but without limiting the application of the Act or other applicable laws that cannot be excluded).”
Clause 48.1 of the contract provided:
“You warrant to us that:
you have full power and authority to enter into and perform your obligations under this contract;
you have taken all necessary action to authorise the execution and delivery of this contract and the performance of your obligations in accordance with the terms of this contract; and
…”
The contracts were not subject to finance.
The contracts did, however, contemplate that the purchaser might obtain finance in order to settle. This is evident from:Clause 2, which gave a definition of financial institution as a bank, building society, credit union, or any other entity that provides finance.Clause 51, which regulated electronic settlement, expressly acknowledging the possibility of the involvement of a financial institution at settlement, andClause 34, which contained a promise by the buyer that the buyer would ensure that a financier never lodged a caveat over the property.
“[13]On the morning of 1 July 2024, the [respondents’] solicitors wrote to the [appellant’s] solicitors, requesting access to the relevant lot for the purposes of obtaining a valuation for finance purposes.
[14]That afternoon, the [appellant] gave notice in respect of each of the contracts requiring settlement on 16 July 2024.
[15]On 2 and 3 July 2024, the [respondents’] solicitors contacted the [appellant’s] solicitors by email asking for a response to their earlier correspondence, threatening to commence this proceeding and giving greater detail of the relief that would be sought. On 4 July 2024, they again wrote to the [appellant’s] solicitors. They also contacted the Registry seeking an urgent listing.
[16]On 5 July 2024, having received no response from the [appellant’s] solicitors, the [respondents’] solicitors wrote directly to the [appellant] and served that letter on the [appellant’s] registered office.
[17]The matter was mentioned before me on the afternoon of Friday, 5 July 2024, at which time I made directions for the hearing of the matter on Thursday, 11 July 2024, so as to enable the parties to file material and submissions going principally to the legal issue of whether the [appellant] was under the implied duty contended for by the applicants.
[18]On 8 July 2024, the [appellant’s] solicitors wrote to the [respondents’] solicitors. The relevant part of the letter stated:
‘Despite the Seller having no obligation under the Contract or at law to allow access to the site or the Lot by third parties, the Seller has decided to consider the Buyer’s request for access by a valuer for inspection of the Lot, if the Buyer requires a valuer to inspect the Lot.
We are also instructed to record that our client has not previously refused access (again despite having no obligation to grant access) and that given the necessary ongoing works on site, it is now practically acceptable to allow others to access the site.
We note the Contract is not subject to finance and the Contract does not contain terms that allow the Buyer (or any third party) the right to access the building site or the Lot at any time. Any decision about access is at the Seller’s discretion. Any decision to allow access should not be interpreted as acceptance by the Seller that the Buyer (or any third party) has a right to access the site or that the Seller is contractually obliged to allow such access.’
[19]The letter went on to set out a protocol for the buyer to obtain access for a valuer.
[20]According to the [appellant’s] affidavit evidence, access could not be given before 8 July because the development remained under construction and it was not possible to provide safe and clear access. Between 1 and 5 July 2024 (8 July being the next business day), there were multiple trades on site undertaking work to complete the development. As part of those works, the entrance and passageways were obstructed, with open welding occurring throughout, as well as wet mortar on some of the hallway floors.
[21]The [respondents] contend that it is now too late to get the valuation task done in time for a settlement on 16 July 2024. The contract contemplated the buyer having 14 clear days after the clause 10.1 notice to prepare for settlement. The [respondents] argue that by issuing the notices and then failing for a full business week to respond to their requests, the [appellant] denied each of them the benefit of the full notice period to be ready to settle the relevant contract.
[22]Their case is that in failing to respond, much less permit access, until the seventh day of the notice period, the [appellant] “burned” half of the notice period contemplated by the contract.
[23]By delaying in the way that it did, the [appellant] is said to have denied each of the [respondents] the time that (according to the contract) they needed to be ready for settlement after obtaining a valuation for the purpose of obtaining finance to settle. In that way, the [appellant] is alleged to have breached the duty.
[24]The [respondents] rely on the [appellant’s] breach to engage the ‘prevention principle’. In short, this principle is that a party cannot take advantage of a state of things that its breach or failure to perform its contractual duty has produced. On this basis, the [respondents] seek a declaration that the [appellant] is not entitled to insist on a 16 July 2024 settlement date.”
“1.In respect of each of the contracts identified in the schedule to this order, it is declared that:
by reason of the implication in that contract (Contract) of a term requiring that each party co-operate to allow the other party the benefit of the Contract, upon request by the purchaser under the Contract (Purchaser), the [appellant] is required, within a reasonable time after receiving the request, to permit access to the real property (Property) the subject of the Contract by a valuer appointed by the Purchaser so as to enable the valuer to provide advice to the Purchaser as to the value of the Property for the purpose of obtaining finance in advance of completion of the Contract;
the [appellant] has, despite request by the Purchaser, failed to permit and facilitate such access; and
the [appellant] is not entitled to call for completion of the Contract on 16 July 2024.
In respect of each of the said contracts, the [appellant] is restrained from purporting to terminate that contract in reliance on failure by the purchaser or purchasers under that contract to settle on 16 July 2024.
…”
Grounds of Appeal
Grounds 1–5: Implication of a Term
It was conceded by counsel appearing for the appellant that even though the contracts were not subject to finance, by reason of the clauses which I have referred to at [3(i)] above, it was within the contemplation of the parties that the purchasers might borrow the purchase price from a financier in order to complete the contract.
The appellant attacked the primary judge because he took judicial notice of the “commercial reality” that the purchase price to be paid under the contracts “would be obtained from a financier”. In fact what the primary judge said, having referred to at least one of the provisions mentioned at [3(i)] above was that, “the contract and commercial reality contemplated that the finance would be obtained from a financier” – [66] below. The appellant contended that judicial notice could not be taken of the fact that the buyers would require finance to complete the sales. It was said that, “A court may only judicially notice a fact whenever it ‘is so generally known that every ordinary person may be reasonably presumed to be aware of it’”.1
The units were in a unit block constructed in Benowa, and sold between 2021 and 2023, off the plan, for a purchase price of around $500,000. In my view, the Court could take judicial notice of the fact that a purchaser under such a contract was likely to obtain finance to complete the contract, either because they needed finance to complete the contract, or because of the negative gearing taxation advantages available if the unit was an investment. That this is a very common method of purchasing homes and investment properties in Australia is generally known within the Holland v Jones test. Support for this conclusion is found in Grieve v Enge2 where de Jersey CJ, writing in the Court of Appeal, took judicial notice of the fact that on the purchase of a domestic dwelling pursuant to a contract which was subject to finance, “It would be a most unusual situation for repayment of moneys advanced for the purchase of a residential property not to be secured against the property itself” – [30].
In any case, questions of judicial notice as to the obtaining of finance aside, the contract signed by the parties contemplated that the purchaser might obtain finance in order to pay the purchase price on settlement, and the primary judge relied upon that in interpreting the contract to include the term set out at paragraph 1(a) of his orders.
I turn to the implication of a Mackay v Dick term. The question of interpretation centres on what benefit was promised by the appellant at cll 8.5 and 10.1 of the contract. By these clauses it was necessary for the appellant to give the respondents at least 14 days notice of settlement and the notice was to be given at a time “reasonably determined” by the appellant. Counsel for the appellant conceded that the words “as reasonably determined” in cl 10.1 must relate to the time at which the appellant gave the notice; that is, the appellant was to act reasonably in determining the time it chose to give the notice.
“[61]In the commercial circumstances known to the parties at the time they contracted, procuring finance at settlement entailed, like practically every other buyer in the market, the opportunity to be extended finance upon a valuation that, in this case, could only be conducted once the unit was finished and able to be safely accessed by an appointed valuer.
…
[70]The associated promise was that the buyer would have a clear 14 days after the notice under clause 10.1 to attend to these things so as to obtain the finance necessary to complete.”
“[31]The primary Judge held that once Mr Enge became aware that the respondents needed access to the property, for the purposes of an inspection to facilitate the preparation of the valuation required by the bank asked to advance the necessary funds, Mr Enge was obliged to allow that access. That arose from his fundamental, if unwritten, contractual obligation. As put by Lord Blackburn in Mackay v Dick (p. 263):
‘I think I may safely say, as a general rule, that where in a written contract it appears that both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect. What is the part of each must depend on circumstances.’
[32]That principle has been repeated countless times since; for example, per Griffith CJ in Butt v M’Donald (1896) 7 QLJ 68, 70-1:
‘It is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract.’
[33]In Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596, 607 Mason J said of this duty:
‘It is easy to imply a duty to co-operate in the doing of acts which are necessary to the performance by the parties or by one of the parties of fundamental obligations under the contract. It is not quite so easy to make the implication when the acts in question are necessary to entitle the other contracting party to a benefit under the contract but are not essential to the performance of that party’s obligations and are not fundamental to the contract. Then the question arises whether the contract imposes a duty to co-operate on the first party or whether it leaves him at liberty to decide for himself whether the acts shall be done, even if the consequence of his decision is to disentitle the other party to a benefit. In such a case, the correct interpretation of the contract depends, as it seems to me, not so much on the application of the general rule of construction as on the intention of the parties as manifested by the contract itself.’
[34]In this case, obtaining finance was not necessary just to entitle the respondents to ‘a benefit’ under the contract. Rather, as Mr Enge must be taken to have appreciated, it was necessary to assure their very capacity to complete, and thereby obtain the fundamental benefit of the contract. Obtaining finance was inextricably linked to the respondents’ performance of their central obligation, namely, payment of the purchase price (cf. Foran v Wight, p. 433). I would characterise Mr Enge’s co-operation, by allowing access to facilitate the preparation of a valuation to found the requisite application for finance, as essential to the respondents’ performance under the contract, so that it was something Mr Enge was by implication duty‑bound to supply. See also Grubb v Toomey [2003] TASSC 131, where Slicer J considered the implication of a term obliging the vendor to permit access for the purpose of valuation necessary ‘to make the contract work’ (albeit there was in that contract no express coverage of the matter of access).
[35]The existence of that duty did not depend on express provision in the contract that access must be allowed for purposes of valuation, or that any finance raised must be secured upon the subject property, as Mr Moon submitted: it arose because of the implication of the general duty to cooperate, applicable to ensure fulfilment of this matter of fundamental importance to completion.” (my underlining).
The appellant submitted that the facts here fell within the second class of cases discussed by Sir Anthony Mason in Secured Income Real Estate and that therefore there could be no implied term as found by the primary judge. Adopting the approach suggested at the end of the extract from Secured Income, underlined above, I return to the terms of the contract.
As already discussed, cll 8.5 and 10.1 promised the respondents at least 14 days in which to prepare for settlement, in circumstances where the contract contemplated that they might borrow the purchase price from a bank and, in accordance with Grieve, finance was likely to be secured by a mortgage over the lot to be purchased. The units were sold “off the plan” so that neither the respondent purchasers, nor their financiers’ valuers, could have inspected the lot they purchased before signing the contract to buy. In determining the time at which it gave the notice to start the not-less-than-14 day period running, the appellant was obliged to act reasonably. It must have been the contemplation of the parties that the notice would be given at the end, or towards the end, of the building project. In these circumstances, it seems to me that the appellant could not reasonably determine to give a notice which would mean that the respondent purchasers had less than 14 days to access the real estate which was the subject of their purchase, either themselves, or by any other person having business related to the respondent buyers’ preparation for settlement.
I can see no error in the decision of the judge below in interpreting the contract as containing an implied Mackay v Dick promise to respond promptly to requests so as to allow the purchaser the full 14 days in which to provide access to a valuer. Another way to interpret the contract would have been to say that, having regard to the same factual and contractual matters, a valid notice pursuant to cl 10.1 could not have been given at a time when, having regard to the condition of the site, the purchaser did not have the full 14 days notice period in which to have a valuer attend the lot and make a report to the bank.
It follows from what I have said that grounds 1–5 of the notice of appeal must fail.
Grounds 6 and 7: Breach of Contract
It was submitted that even if the term contended for by the respondents was implied in the contract, there was an independent error by the judge below in finding that, at the time of the hearing before him, the term had been breached. The points advanced were, in my view, most unmeritorious.
In circumstances where the matter came on for hearing urgently and very full, considered reasons were delivered the day after the hearing, the complaint was that at one part of the reasons below ([83], [87], [89]), the primary judge referred to the appellant not having provided access to a bank’s valuer within a reasonable time after a request being received, but at a later part of the reasons ([104] and [106]), the primary judge spoke of the appellant seller being in breach by not according the buyers a full 14 day period in which to have their valuers inspect the newly created lots. It was also argued that the judge below erred because there was not, in fact, any unreasonable delay by the appellant in this case.
In delivering reasons for decision on Friday, 12 July 2024, the primary judge indicated the general form of orders he proposed to make and asked the parties to confer and then agree a suitable form of order. They did not do that, so that they returned to the primary judge again on Monday, 15 July, for the judge to settle the orders in circumstances where they were contested. The judge then settled the order and gave a second set of brief reasons for resolving that contest.6 In those reasons the primary judge found that the week long delay of the appellant seller in responding to the buyers’ requests for access was unreasonable – [13]. This was said to be inconsistent with a finding that the term of the contract breached was a term which required a reasonable time for response. The complaint made on appeal was that the judge did not make any finding about what a reasonable time was.
There is nothing in this point. The appellant seller ignored requests from the respondents which were made on 1 July 2024, the day on which the appellant gave its cl 10.1 notice, and on the succeeding four days. On 8 July 2024 the appellant condescended to communicate that it had “decided to consider the Buyer’s request for access by a valuer” and for the first time asserted that it had not been “practically acceptable” to allow persons onto the site of the development because of “ongoing works”. The term implied in the contract by the judge below was to the effect that the appellant was obliged to permit the valuers access within a reasonable time after request. This allowed them the full 14 day period stipulated by the contract to prepare for settlement. That promise was breached.
Grounds 8–10: Causation of Harm
“[91]While some buyers were able to have valuers undertake inspections in the week commencing 8 July 2024, this is not to say that the delay in their doing so will not delay completion of the valuation reports, review of them by lenders, final approval of finance and the actual provision of finance for a settlement on Tuesday, 16 July 2024. I infer that it will.”
The appellant’s argument as to causation did not bear upon its challenge to the declarations made at paragraphs 1(a) and (b) of the primary judge’s orders. It was said to be a reason that the declaration at paragraph 1(c) ought not to have been made, and the injunction ought not to have been made.
In the second set of reasons below, delivered 15 July 2024, the primary judge recorded:
“[8]The parties on Friday 5 July 2024 sought directions for the matter to be heard on Thursday 11 July, for the applicants to file their material and submissions on Monday 8 July, and for the respondent to file its material and submissions on Wednesday 10 July. The focus of the hearing was expected to be on the legal issue that I determined.
[9]In the circumstances, the applicant was not expected to file, and it would have been unreasonable for it to file in circumstances of urgency, material about the process by which each buyer applied for finance, and the expected duration of the valuation process and any final approval of finance on the strength of the valuation that was to be obtained.
[10]The hearing proceeded on the assumption that the applicant’s required finance (they were not engaged in a moot on a question of law, having already obtained the finance required to complete) and that the respondent’s delay in responding to the applicants’ requests for valuer access and in not allowing access until 8 July at the earliest (when the respondent gave the advice I quoted in [18] of my reasons) had delayed the process by which the buyer was to obtain finance for the purpose of settlement.
[11]The urgency of the matter did not reasonably permit evidence to be filed by the applicants on Monday 8 July 2024 about the time that different valuers might take to inspect the relevant unit and then provide the necessary valuation advice. It must be recalled that it was not until 8 July 2024 that the respondent responded to the request and indicated any preparedness to allow such a valuation.
[12]Had time permitted the applicants to file material about timing issues in respect of each buyer about that individual buyer’s process of obtaining a valuation and finance, I might have made detailed findings in respect of each buyer and declared that the respondent’s breach had not allowed the relevant buyer “sufficient time” to permit the valuation advice to be provided for the purpose of obtaining finance to complete on 16 July 2024. This is the declaration that the applicant’s seek in paragraph 1(b) of their draft order”
Although the relief sought on the originating application below was sought urgently, in the circumstances just described, it was not sought on an interlocutory basis, and the orders made were final orders. Nonetheless, the respondent buyers were not seeking relief in respect of harm that had already occurred. They sought relief based upon the likelihood of future harm: because of the delay in having their bank’s valuers access the premises, they might not receive approval of finance by 16 July 2024, when they otherwise would have.
The appellant’s counsel on appeal accepted that the main contest on the 11 July hearing was as to the existence of an implied term. However, the appellant did submit below that, “The applicants’ evidence does not address, in respect of each contract, what is the capacity of buyers to complete on 16 July, why the buyer did not initiate steps to obtain third party finance much earlier, what is likely to happen between now and 16 July, etc.”7 It is only the third of the matters listed there that was relied upon on appeal.
A breach of contract is actionable without proof of damage. Just as a court will not make a declaration as to a hypothetical event, no doubt the Court ought not exercise its discretion to grant an injunction unless it is persuaded there is a real likelihood of harm. In this case the Court had the correspondence which showed that from 1 July, the earliest date possible, buyers asked to have bank valuers access the property. Further, that until 8 July 2024, no access was provided to valuers, thus effectively halving the 14 day period which the contract allowed to buyers to prepare for settlement. The primary judge knew that between 8 and 10 July 2024, 20 valuers accessed the building site to value the newly created lots.8 This gave credence to the fact that the valuers were acting as quickly as possible in a limited timeframe. As his Honour noted at [91] of his judgment (above), valuers had to inspect, and then prepare valuation reports. After that, lenders had to review the reports, and comply with their own internal processes to give approval for finance in order to settle on 16 July 2024. It was plain that the appellant seller insisted on its rights to settlement on 16 July 2024 under a contract where time was of the essence. The primary judge knew that 23 buyers were sufficiently concerned about the likelihood of harm to have instructed senior counsel to make an application for an injunction on an urgent basis before the Court.
The appellant relied upon cases which illustrate a common law policy that a party in breach of contract should not be allowed to rely on his own wrong so as to obtain a benefit under the contract. This policy is behind various rules which form part of our law of contract. The appellant relied upon and as examples of this principle being applied in cases which at first seem factually similar to that under consideration here. However, neither of those cases concerned the making of an injunction. In both those cases a contract had been terminated and the parties had sued for the return of monies paid under it () or damages (). In both cases a defence was raised to the contractual claim which relied upon proof by the party said to be in breach that they were unable to perform their obligations under the contract because of an antecedent breach by the other party. In both cases it was held that there was insufficient evidence to make out that defence. The assessment of evidence at the end of the trial in those cases is a long way from the task undertaken by the primary judge. He decided to grant an injunction on the basis of the evidence that was before him. He decided that risk of harm was real enough to justify the relief sought. In fact, to grant the injunction sought was very like granting specific performance of the obligations created by cll 8.5, 10.1 and the implied term. I cannot see that the primary judge erred in determining that this was an appropriate case to make the declaration at paragraph 1(c), and the injunction at paragraph 2 of his orders.
Appellant’s written outline of submissions citing Holland v Jones (1917) 23 CLR 149, 153. ↩
[2006] QCA 213. ↩
(1881) 6 App Cas 251. ↩
(1896) 7 QLJ 68. ↩
(1979) 144 CLR 596. ↩
Brightman v Royal Pines Projects Pty Ltd (No 2) [2024] QSC 150. ↩
Appellant’ written submissions below, paragraph 18. ↩
Affidavit Hembrow sworn 10 July 2024, paragraph 4. ↩
See for some examples GH Treitel, The Law of Contract, 10th ed, pp 783-784, and New Zealand Shipping Co Ltd v Société des Ateliers et Chantiers de France [1919] AC 1 and Suttor v Gundowda Pty Ltd (1950) 81 CLR 418. ↩
[2021] VSCA 69, [177]–[185]. ↩
[2017] VSC 197, [62]–[63]. ↩
Royal Pines Projects Pty Ltd
Brightman [2024] QCA 147
(1917) 23 CLR 149
(1979) 144 CLR 596
(1950) 81 CLR 418
Counsel for the appellant argued that the notice was permitted to be given at a time which suited only the appellant because of the provisions at cl 46.1(c). I wonder if that provision is meant to read, “and your rights to object to the exercise of those discretionary rights by us is as limited under this contract”. But, in either case, I cannot see that cl 46.1(c) could be construed so as to take away from the express contractual provision at cl 10.1, which obliges the appellant to reasonably determine the time at which it chooses to give the written notice. Nor can I see that cl 48.1(a) could possibly assist the appellant.
Together cll 8.5 and 10.1 promise the respondent buyers 14 days notice before they are called upon to settle. That is the time the contract allocates for them to prepare for settlement. At settlement they will be required to pay the purchase price. They have 14 days to prepare to do this. The contract contemplates that they might borrow the purchase price from a financier, such as a bank. In those circumstances the trial judge held:
WILSON J: I agree with Dalton JA.
CROWLEY J: I agree with Dalton JA.