Sattel & Ors v The Proprietors Be Bee's Tropical Apartments Building Units [2001] QCA 560
[2001] QCA 560
Court of Appeal (Qld)|2001-12-14|Before: de Jersey CJ, Chesterman and Atkinson JJSeparate reasons for judgment, of each member of the Court, each concurring as to the orders made.
de Jersey CJ, Chesterman and Atkinson JJSeparate reasons for judgment, of each member of the Court, each concurring as to the orders made.
Catchwords
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH
& DEFENCES TO ACTION FOR BREACH – REPUDIATION
AND NON-PERFORMANCE
– REPUDIATION – OTHER PARTICULAR CASES – appeal against
Source
Original judgment source is linked above.
Catchwords
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH& DEFENCES TO ACTION FOR BREACH – REPUDIATIONAND NON-PERFORMANCE– REPUDIATION – OTHER PARTICULAR CASES – appeal againstdetermination that body corporate liablein damages for repudiation ofcaretaking agreement – whether agreement ultra vires, on a numberof bases – whether body corporate undertook to remunerate respondents forcarrying out services in relation to theirown unit, contrary to BuildingUnits and Group Titles Act – whether body corporate required toauthorise by by-law the assumption of an obligation to pay for cleaning servicewith respectto reception area – whether attenuated cleaning and tidyingobligation fell within maintenance and repair obligation of bodycorporate unders 37(1)(c) – consideration of meaning of that obligation – whetherrespondents required to provide cleaningand maintenance services atappellant’s expense with respect to common areas over which it enjoyed
exclusive use – whether
provision of PABX service authorised by by-laws
– whether payment for such service by appellant authorised – where
provisions
severable – whether certain special privileges in respect of
common property authorised by by-law – where provisions
severable
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE,
BREACH & DEFENCES TO ACTION FOR BREACH – REPUDIATION
AND
NON-PERFORMANCE – REPUDIATION – WHAT AMOUNTS TO REPUDIATION –
whether appellant repudiated agreement –
whether respondents themselves in
breach by contending the agreement was valid in its entirety, where it had been
found partly invalid
– whether agreement had been terminated pursuant to s
50(9)DAMAGES – GENERAL PRINCIPLES – OTHER MATTERS –
whether trial Judge properly remitted assessment of damages to District
Court
PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE
EVENT – COSTS OF WHOLE ACTION – GENERALLY –
whether discretion
in relation to costs properly exercised – where costs awarded following
the event notwithstanding remitting
assessment of damages Building
Units and Group Titles Act 1980 (Qld) s 30(7), s 30(7A), s 30(7AA), s 37, s
37(1), s 37(1)(a), s 37(1)(b), s 37(1)(c), s 37(2)(a), s 37A, s 38(3)(b), s
38(4), s 38(5), s 38(6), s 38A(2), s 50, s 50(1), s 50(9), s
124Carney v Herbert (1985) AC 301, referred toDTR Nominees
Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12
(1977-8) 138 CLR 423, consideredForan v
Wight [1989] HCA 51
(1989) 168 CLR 385, citedHumphries & Anor v The Proprietors
“Surfers Palms North” Group Title Plan 1955 (Appeal No 105 of
1992, 29 October 1992), referred toHumphries & Anor v The Proprietors
of “Surfers Palms North” Group Title Plan 1955 [1994] HCA 21
(1992-4) 179 CLR
597, referred toMcFarlane v Daniell [1938] NSWStRp 20
(1938) 38 SR(NSW) 337, referred
toSegacious Pty Ltd v Fabrellas [1991] 1 QdR 471,
citedSevenoaks Maidstone and Tunbridge Railway Co v London Chatham and
Dover Railway Co (1879) 11 ChD 625, consideredWater Board v
Moustakas (1988) 180 CLR 491, cited
Judgment (15 paragraphs)
[1]
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH & DEFENCES TO ACTION FOR BREACH - REPUDIATION AND NON-PERFORMANCE - REPUDIATION - OTHER PARTICULAR CASES - appeal against determination that body corporate liable in damages for repudiation of caretaking agreement - whether agreement ultra vires, on a
[2]
number of bases - whether body corporate undertook to remunerate respondents for carrying out services in relation to their own unit, contrary to Building Units and Group Titles Act - whether body corporate required to authorise by by-law the assumption of an obligation to pay for cleaning service with respect to reception area - whether attenuated cleaning and tidying obligation fell within maintenance and repair obligation of body corporate under s 37(1)(c) - consideration of meaning of that obligation - whether respondents required to provide cleaning and maintenance services at appellant's expense with respect to common areas over which it enjoyed exclusive use - whether provision of PABX service authorised by by-laws - whether payment for such service by appellant authorised - where provisions severable - whether certain special privileges in respect of common property authorised by by-law - where provisions severable
[3]
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH & DEFENCES TO ACTION FOR BREACH - REPUDIATION AND NON-PERFORMANCE - REPUDIATION - WHAT AMOUNTS TO REPUDIATION - whether appellant repudiated agreement - whether respondents themselves in breach by contending the agreement was valid in its entirety, where it had been found partly invalid - whether agreement had been terminated pursuant to s 50(9)
[4]
DAMAGES - GENERAL PRINCIPLES - OTHER MATTERS - whether trial Judge properly remitted assessment of damages to District Court
[5]
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION - GENERALLY - whether discretion in relation to costs properly exercised - where costs awarded following the event notwithstanding remitting assessment of damages