CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH
AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND
NON-PERFORMANCE
– REPUDIATION – GENERAL PRINCIPLES – where the defendants
Source
Original judgment source is linked above.
Catchwords
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACHAND DEFENCES TO ACTION FOR BREACH – REPUDIATION ANDNON-PERFORMANCE– REPUDIATION – GENERAL PRINCIPLES – where the defendantssubmit the contract was terminated on12 February 2025 – where theplaintiffs were to pay a deposit of $125,000 by 2 February 2025 – where$90,000 of the depositwas part-paid on 1 February 2025 – where theplaintiffs paid the remaining deposit of $35,000 two days late on 4 February2025– where the defendants did not act on the breach until ten days later– where the conduct of the parties was consistentwith them proceedingwith the contract – where the defendants also submit that the plaintiffswere obliged to pay the wholedeposit of $326,400 by 2 February 2024 –where the defendants further argued that they did not know that the Storeys wereoccupyingthe house – whether the first defendant validly terminated the
contract on 12 February 2024
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH
AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND
NON-PERFORMANCE
– ELECTION AND RESCISSION – GENERALLY – where the
defendants’ lawyers wrote a letter affirming
the contract on their behalf
to the plaintiffs – where that letter is not a without prejudice letter
and is admissible evidence
– where the Brittons submitted the letter of 1
March was ineffective because the contract had already been terminated by the
letter of 12 February 2024 – where the Brittons were asserting by the end
of march that the contract was terminated –
whether the Brittons revived
the contract by the letter from their solicitors of 1 March 2024
CONVEYANCING – COMPLETION OF CONTRACT – OBLIGATION OF PARTIES
GENERALLY – where the contract was due to settle on
16 August 2024 –
where the Brittons were asserting that the contract had been terminated –
where the Brittons did not
cooperate in the conveyance – where the
Brittons did not tender a discharge of mortgage so as to give clear title of the
property
– where the Brittons did not sign the Form 1 Transfer –
where the Brittons did not settle the contract – whether
the Storeys are
in breach of the contract if the contract has not been validly terminated
CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES –
PURCHASER’S REMEDIES – SPECIFIC PERFORMANCE –
GENERAL
PRINCIPLES – where the defendants argue that the plaintiffs were never
ready, willing and able to complete the contract
– where the conveyancer
acting for the Storeys gave evidence that the settlement could have proceeded
but for the lack of participation
from the Brittons – where the
conveyancer acting for the Storeys gave evidence that they has obtained
appropriate finance –
whether the Storeys were and are ready, willing and
able to complete the contract
TORTS – INTEREFERENCE WITH PROPERTY – TRESPASS TO LAND –
JUSTIFICATION – ENTRY UNDER WRITS, ORDERS, STATUTORY
OR OTHER LEGAL RIGHTS
– where the first defendant argued that the Storeys were trespassing on
the property the subject of the
contract – where the special conditions
gave the Storeys ‘exclusive access’ to the property – where
the Brittons
had access only for a limited purpose and time – whether the
plaintiffs are trespassing by residing in the property since 1
or 2 February
2024
Veolia Water Solutions v Kruger Engineering [2007] NSWSC 46,
cited
Davidson v Bucknell [2011] 1 Qd R 563, cited
Le v
Bui [2008] QSC 149, cited
Lockyer Land Plans Pty Ltd v Metcoal Trading Pty Ltd [2021] QSC 138,
cited
Judgment (74 paragraphs)
[1]
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - REPUDIATION AND NON-PERFORMANCE - REPUDIATION - GENERAL PRINCIPLES - where the defendants submit the contract was terminated on 12 February 2025 - where the plaintiffs were to pay a deposit of $125,000 by 2 February 2025 - where $90,000 of the deposit was part-paid on 1 February 2025 - where the plaintiffs paid the remaining deposit of $35,000 two days late on 4 February 2025 - where the defendants did not act on the breach until ten days later - where the conduct of the parties was consistent with them proceeding with the contract - where the defendants also submit that the plaintiffs were obliged to pay the whole deposit of $326,400 by 2 February 2024 - where the defendants further argued that they did not know that the Storeys were occupying the house - whether the first defendant validly terminated the contract on 12 February 2024
[2]
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - REPUDIATION AND NON-PERFORMANCE - ELECTION AND RESCISSION - GENERALLY - where the defendants' lawyers wrote a letter affirming the contract on their behalf to the plaintiffs - where that letter is not a without prejudice letter and is admissible evidence - where the Brittons submitted the letter of 1 March was ineffective because the contract had already been terminated by the letter of 12 February 2024 - where the Brittons were asserting by the end of march that the contract was terminated - whether the Brittons revived the contract by the letter from their solicitors of 1 March 2024
[3]
CONVEYANCING - COMPLETION OF CONTRACT - OBLIGATION OF PARTIES GENERALLY - where the contract was due to settle on 16 August 2024 - where the Brittons were asserting that the contract had been terminated - where the Brittons did not cooperate in the conveyance - where the Brittons did not tender a discharge of mortgage so as to give clear title of the property - where the Brittons did not sign the Form 1 Transfer - where the Brittons did not settle the contract - whether the Storeys are in breach of the contract if the contract has not been validly terminated
[4]
CONVEYANCING - BREACH OF CONTRACT FOR SALE AND REMEDIES - PURCHASER'S REMEDIES - SPECIFIC PERFORMANCE - GENERAL PRINCIPLES - where the defendants argue that the plaintiffs were never ready, willing and able to complete the contract - where the conveyancer acting for the Storeys gave evidence that the settlement could have proceeded but for the lack of participation from the Brittons - where the conveyancer acting for the Storeys gave evidence that they has obtained appropriate finance - whether the Storeys were and are ready, willing and able to complete the contract
[5]
TORTS - INTEREFERENCE WITH PROPERTY - TRESPASS TO LAND - JUSTIFICATION - ENTRY UNDER WRITS, ORDERS, STATUTORY OR OTHER LEGAL RIGHTS - where the first defendant argued that the Storeys were trespassing on the property the subject of the contract - where the special conditions gave the Storeys 'exclusive access' to the property - where the Brittons had access only for a limited purpose and time - whether the plaintiffs are trespassing by residing in the property since 1 or 2 February 2024
[6]
Veolia Water Solutions v Kruger Engineering[2007] NSWSC 46, cited
Lockyer Land Plans Pty Ltd v Metcoal Trading Pty Ltd[2021] QSC 138, cited
[10]
[1] On 31 January 2024, the plaintiffs, Mr and Ms Storey, entered into a contract to buy a residential property at 72 Cuba Court, Parrearra on the Sunshine Coast.[1] The sellers are the defendants, Mr and Ms Britton. The purchase price was $3,264,000.
[2] The contract provided that:
[11]
(a) settlement was to occur electronically, some 7 months later, on 16 August 2024;
(b) the Storeys were to pay a 10% deposit "as soon as possible" but in any event by three payments:
(c) The Brittons were to have immediate access to the deposit payments - there was no provision for the deposit to be held by a stakeholder or in trust pending settlement;
(d) On payment of the first of the deposit payments the Storeys were entitled to "exclusive access" to the property, subject to the Brittons having access for the purposes of removing their belongings - as specified in a side deed.[3]
[12]
[3] The contract is a standard REIQ contract. However, there are six special conditions. At least as to the deposit and possession (or "access" as it is described), the special conditions appear to override the general teams and conditions provisions. That is consistent with common sense.[4]
[4] There are five issues:
[13]
(a) whether the Brittons validly terminated the contract on 12 February 2024;
(b) whether the Brittons revived the contract by the letter from their solicitors of 1 March 2024;
(c) if the contract has not been validly terminated, whether the Storeys are in breach of the contract;
(d) if the contract remains on foot, whether the Storeys were and are ready, willing and able to complete the contract; and
(e) whether the Storeys, by residing in the property since 1 or 2 February 2024 are trespassing.
[14]
[5] By an order made on 30 May 2025, the trial was set down but the issues were limited to the proceeding being tried, except for damages and costs.
[15]
Issue 1: Purported Termination on 12 February 2024?
[16]
[6] The Brittons submit that the contract was terminated on 12 February 2024.
[7] The first part of the deposit comprising $125,000 was to be paid by 2 February 2024. A sum of $90,000 was paid on 1 February 2024. The Storeys moved into the property on 2 February 2024. The remaining $35,000 was not paid on that day.
[8] Two days later, on 4 February 2024, Ms Britton sent a text message to Mr Storey. Both are lawyers and the latter part of the negotiations for the sale of the property were conducted between Ms Britton and Mr Storey.[5] Ms Britton said:
[17]
"Good morning just checking you made payment of the remaining $35k from the initial deposit?"
[18]
[9] That text was sent at 7:19am. A short time later Mr Storey responded with two texts. The first was as follows:
[19]
"My God! I've been so occupied moving I completely forgot, Will do immediately. Sorry Michelle - that is unacceptable!"
[20]
[10] The second of Mr Storey's texts (sent at 8:22am) was:
[21]
[14] To this point it is clear that Ms Britton was not taking any issue with the fact that the $35,000 was paid two days late.
[15] But, at 12:22 pm that same day Ms Britton sent another text - this time tentatively raising the issue of the late payment of the deposit:
[22]
"Hi Josh I have spoken to Andrew [i.e. Mr Britton] and we will actually come back to you re the late initial deposit. Ta"
[23]
[16] Ms Storey sent a response (which is in three separate texts):
[24]
[19] The issue does not appear to be pursued any further. Two days later, on 6 February 2024 Ms Britton sent a text to Mr Storey as follows:
[25]
"Josh I will likely be at the property tomorrow. I am also having issues with air bnb cancelling the one for next week so i may now have to sort something out."
[26]
[20] The concern Ms Britton was expressing was that she was having difficulty cancelling an Airbnb booking for the property. Plainly that was a concern because the contract provided for the Storey's to have 'exclusive access' from the date of the payment of the initial deposit.
[22] There was some cross-examination on what the word "here" meant in this text. It must be referring to the property at 72 Cuba Court. Ms Britton was seeking to gain access to the property and Mr Storey was saying that he would not be at the property, but Ms Storey would be there.
[23] Around this time there were some texts exchanged between Mr Storey and Mr Britton regarding mail that had arrived for the Brittons and the handover of keys for the garage and letterbox. At this point all the indications were that the contract was proceeding. Of course, as is clear from the texts, the Storeys had taken up residence in the property, and the Brittons were in the process of ensuring that the Storeys had the various keys.
[24] Nothing further significant appears to have happened until 12 February 2024 when Griffins McDonald Carson, solicitors acting for the Brittons, wrote to the Storeys by email:
[29]
"Pursuant to standard clause 1(v) payment of deposit by the due date is an essential term of the contract. The deposit was not paid by the due date and consequently, you are in breach of the contract. As a result of the Seller's ongoing rights pursuant to standard clause 9.1, the Sellers hereby terminate this contract of sale.
[30]
Consequently, the side deed is also hereby terminated. Please provide your bank account details so that your payment can be returned to you.
[31]
Please remove all belongings and vacate the property within seven (7) days. Please ensure that all keys are returned to the parcel letterbox."
[32]
[25] On the same day Mr Storey responded - also by email. Under a heading 'waiver' the following appeared:
[33]
"Your letter asserts that the deposit was not paid by the due date. As a result, you further assert that we are in breach of clause 1(v) of the Sale Contract.
[34]
We reject the validity of these assertions and draw your clients' attention to the interparty correspondence to date. On 4 February 2024, and 6 February 2024, your clients waived any claims in relation to, or in the alternative are estopped, from raising a breach of clause 1(v) of the Sale Contract in the circumstances where they made an election to affirm the Sale Contract under clause 9.191) that is unequivocal. A true copy of this appears at Annexure A.
[35]
Moreover, your clients are in receipt of the $125,000 instalment of the deposit in accordance with the Sale Contract. You clients received $90,000 on 1 February 2024 (being a day early), and $35,000 on 4 February 2024 (being a Sunday). Your clients have had immediate access to these funds for well over a week and have suffered no detriment.
[36]
Termination and affirmation are mutually inconsistent rights; the exercise of one is necessarily the rejection or abandonment of the other. An election to affirm a contract does not depend upon actual intention; it will be inferred from any conduct consistent only with the continued existence of the contract. Once a choice is made, it is irrevocable and the other course of action is no longer open.
[37]
Your clients, having made an inquiry into the $35,000 balance, was immediately provided evidence of its payment, and responded "No problem at all thank you! Hope all is well :)". In a separate message exchanged between the parties, your clients stated "All good and I am thrilled :) thank you." Your clients confirmed later that day receipts of the funds.
[38]
Your clients also messaged us on Tuesday 6 February to express: "Hopefully we can get the [remaining] keys over to you this week for the garage, letter box and more of the keys you already have." Your clients also asked if we could deliver their mail for them the same day, which we did, and informed us that they had told their sons "to change the[ir] address for all mail, so hopefully not to[o] may more come through."
[39]
In the circumstances, your clients' position is not tenable."
[40]
[26] In my view, the Brittons' purported termination on 12 February 2024 was not a valid termination of the contract. The breach, comprising the failure to pay the $35,000 by 2 February 2024, was not acted on by the Brittons until ten days later. In the meantime, the Storeys continued to live in the house without any protest. The Brittons made arrangements for keys and mail to be exchanged, and Ms Britton advised Mr Storey about her attempts to cancel the Airbnb booking. All of that was conduct consistent with the parties proceeding with their bargain.
[27] And, in Ms Britton's own words, there was "no problem at all" with the late payment of the $35,000.
[28] Viewed as a whole, Mr and Ms Britton had elected to affirm the contract.
[29] Of course, a breach of contract does not automatically terminate the performance of a contract; termination is a matter of choice or election to be made by the innocent party.[7] Here, Ms Britton made a choice. The late payment was "not a problem". And, even after she spoke with Mr Britton, they both continued with the logistics of the changeover.
[41]
[30] Mr and Ms Britton argued that the court should give effect to the provision in clause 2.2 that the deposit should be paid "as soon as possible". But those words are followed by the words "but in any event" by the three specified dates for the respective tranches of the deposit. The evident intention is for the contractual promise to apply to the three specified dates.
[31] Mr and Ms Britton also argued that the Storeys were obliged to pay the whole deposit of $326,400 by 2 February 2024. That argument seems to depend on reading the words "initial deposit" in the special conditions as if they imported similar words in page 3 of the reference schedule in the standard REIQ form. However, that part of the form seems completely inconsistent with the special conditions. It specifies that the whole of the deposit is "payable on the day the Buyer signs this contract unless another time is specified below". In fact, other dates are specified below. And it is obvious that the reference schedule, in referring to both an Initial Deposit and a Balance Deposit is catering for the usual situation where the deposit is paid in one or two tranches. That is not the case here, where the special conditions specify three specific amounts payable on three specific dates. Again, the special conditions should be preferred as the correct record of the parties' intentions.
[32] Another argument raised by the Brittons was that in her text messages Ms Britton spoke only for herself. I do not accept that. Just as Mr Storey conducted the negotiations on behalf of himself and Ms Storey, Mr Britton entrusted the negotiations and communications between the parties to Ms Britton. That was understandable, Ms Britton was a solicitor.
[42]
Further Disputes - Late February and March 2024
[43]
[33] From about 14 February 2024, it appeared that Griffins McDonald Carson ceased acting for the Brittons. On that day Ms Britton's law firm, Focus Family Law wrote to the Storeys disputing the Storeys' entitlement to rely on the "waiver", asserting that the Storeys had breached the contract and requiring them to vacate the property and remove their possessions. Mr Storey responded disputing the claims on 15 February 2024.
[34] One of the factual disputes was whether the Brittons knew that the Storeys were occupying the property from about 2 February 2024. On that issue the evidence is almost all one way. I find that the Brittons did know that the Storeys were occupying the house. The negotiations were conducted on the basis that the Storeys would move in early.[8] Mr Storey spoke about moving in and then, when the Storeys had moved in, he was effusive in his praise of the house and its design. Mr Storey spoke about his wife being "here" which could only mean at the property. Mr Britton gave Mr Storey instructions on the operation of the pool fountain. And then, as explained in the previous paragraph, Ms Britton's own law firm demanded that the Storeys "vacate" the property. All of that is consistent with all parties knowing that the Storeys had taken up occupation of the property.
[35] Ms Britton gave evidence to the contrary,[9] but I do not accept that evidence. It clashes with the contemporaneous communications.
[36] On 19 February 2024 another law firm, Ascendia Lawyers, wrote to the Storeys on behalf of the Brittons. An offer was made. Then, Ms Britton sent a direct email to the Storeys saying she was returning to the property 'forthwith' and asserting that the Storeys did not have an agreement for possession - it was for "access" only.
[37] That was wrong. The special conditions included the following:
[44]
4.1 The parties agree that the Seller will continue to have access to the property in accordance with the storage and agreement in the Side deed for the purpose of removing property within the time specified in the side deed.
[45]
5.1 The parties agree that the Buyers have access to the property from the date of the payment of the initial deposit and will have exclusive access to the property save for clause 4.1 above."
[46]
[38] Those special conditions gave the Storeys "exclusive access" to the property subject only to the Brittons having access for the purpose of removing their property. The Storeys were entitled to that "exclusive access" from the time they paid the initial deposit - in early February 2024.
[39] The Storeys then paid the second instalment of the deposit on 23 February 2024.
[47]
[40] On 1 March 2024 Ascendia Lawyers wrote on the Brittons' behalf saying:
[48]
"We are instructed to affirm that the contract is afoot and hereby rescind only prior notice of termination.
[49]
We therefore confirm that the Contract remains on foot."
[50]
[41] There was an argument that the letter was a without prejudice letter. However, whilst the label is not decisive, Ascendia Lawyers have not labelled the letter as 'without prejudice'. The initial parts of the letter do not bear any of the hallmarks of being without prejudice in substance. In fact, the declaration that the contract remains on foot appears to be part of what is obviously open correspondence. That view is reinforced by the subsequent note regarding the critical dates under the contract and the invitation to advise if the dates stated are not agreed. The letter does not include an offer to resolve the dispute. Instead, it sets out the rival contentions. The letter concludes with a demand for possession and a reservation of the Brittons' rights.
[42] In substance, the letter was not a without prejudice letter and is properly part of the admissible evidence.
[43] The Brittons submitted that the 1 March 2024 letter was ineffective. That submission is made because the contract had already been terminated by the letter of 12 February 2024 from the Brittons' then solicitors, Griffins McDonald Carson. The argument is that because the contract had been terminated, it could not ever be revived.
[44] I reject that argument. First, as explained, the contract had not been validly terminated by the Brittons on 12 February 2024. The contract remained on foot in spite of the Britton's purported termination on 12 February 2024. Second, even if that were not accurate, the parties are free to revive their contract. The Brittons were able to withdraw their purported termination. The result was that from 1 March 2024 both parties were contending that the contract was 'on foot'. And, in fact, the contract was on foot. The Brittons had not validly terminated and, even if they had, they chose to revive the contract by the letter from their solicitors of 1 March 2024.
[45] The Brittons argued that the letter of Ascendia Lawyers was affected by a mistake but there is no clear evidence of what that mistake was or how it arose. The communication from Ascendia Lawyers was clear.
[51]
[46] The situation where both parties were seeking to proceed with the contract did not remain the situation for long. There were three further developments which ended with the Brittons again purporting to terminate the contract.
[47] On 4 March 2024, Ms Britton turned up at the property. She entered the property and appeared to have stayed there for some time - perhaps for 20 minutes or so. Eventually police arrived. The interaction was recorded by Ms Britton on her mobile phone and by Mr and Ms Storey on their own mobile phones. Ms Britton put all of the video comprising seven different videos into evidence. During the course of the videos, Ms Britton can be seen to be demanding that the Storeys leave the property. She claimed that they had no right to be there. Her argument seemed to focus on the lack of a specific right to "possession". The Storeys can be heard to be asserting their right to "exclusive access". For the reasons already explained, the special conditions did give the Storeys a right to "exclusive access" - subject only to the Brittons' right to access the property for the purpose of collecting their chattels.
[48] On 8 March 2024 Mr Storey wrote to Ascendia Lawyers. He wrote in some detail. He correctly rejected the assertion by Ascendia Lawyers that the Brittons had a right to revoke the Storeys' right to possession under clause 8.5 of the standard conditions of the contract. Those standard conditions were subject to the special conditions which explicitly granted the Storeys "exclusive access".
[49] On 29 March 2024, the defendants sent an email to the plaintiffs which relevantly stated:
[52]
"We advise that the Contract for the sale of 27 Cuba Court Parrearra is terminated due to breaches by you and other reasons and in this regard we cannot and will not be proceeding to settlement or transfer of the property to you. As such, the Contract is now at an end."
[53]
[50] The email is odd. The email does not identify any specific breach. The Brittons required the Storeys to vacate and remove their chattels so that the Brittons could return to the property. They 'remind' the Storeys that they have no right of access to the property - shared or otherwise and that their possession of the property was a trespass. None of that is true. It ignores the special conditions which explicitly granted the Storeys "exclusive access". Similarly, the Brittons' complaints that the Storeys had changed the locks can hardly be viewed as a breach if, as seems clear, the Storeys had a right to exclusive access.
[51] Again, the Storeys refused to accept the purported termination and stated that the contract remained on foot. At this point, there is no evidence of any further breach or any justification for the Brittons' purported termination.
[52] And so, having purported to terminate on 12 February 2024, the Brittons rescinded that termination on 1 March 2024, and then by the end of March 2024 were asserting that the contract was terminated again, on a basis that was unclear. Certainly, the contention of the Brittons was that the Storeys were wrongfully enjoying "exclusive access" to the property despite the plain terms of the special conditions.
[53] On 24 June 2024, the Storeys attempted to transfer the third and final part of the deposit ($76,400). However, the transfer failed because the Brittons had closed the account into which the contract specified that the money was to be paid. The Storeys subsequently paid that sum. The late payment of that sum is not relied on by the Brittons as a basis for termination.
[54]
Issue 3: Further Alleged Breaches at Settlement
[55]
[54] The contract was due to settle on 16 August 2024. However, there was an element of futility in the exercise.[10] As explained, well in advance of the proposed settlement the Brittons were asserting that the contract was at an end. Further, when the Storey's conveyancers, Lead Conveyancing, tried to progress the proposed settlement they found the Brittons to be somewhat elusive. Ms Britton's firm, Focus Family Law was shown on the contract as the solicitors for the sellers. However, when contacted by Lead Conveyancing_,_ Ms Britton's firm responded that "Focus Family Law do not act in any such matter referenced". When asked for contacts Lead Conveyancing were told "We are not aware of any matter in this regard. We cannot assist further."
[55] The correspondence was plainly a deliberate attempt by the Brittons not to cooperate in the conveyance. A fairer, more courteous and candid response would have been: 'our clients regard the contract as at an end and will not be participating in the settlement'.
[56] In any event, on 12 August 2024, Lead Conveyancing sent Focus Family Law a "PEXA workspace invitation". That is a prelude to operating the conveyance through the PEXA system. The Brittons did not accept the PEXA Workspace invitation.
[57] On 16 August 2024, the Brittons:
[56]
(a) did not tender a discharge of mortgage so as to give clear title of the property;
(b) did not digitally sign the Form 1 Transfer; and
(c) did not settle the contract.
[57]
[58] After 4 pm on 16 August 2024, Moore Lawyers (as solicitors for the buyers) demanded the Brittons settle the contract on 19 August 2024 - the following Monday. The settlement similarly failed to settle then. At this point it is plain that the Brittons were refusing to proceed with the contract. However, nothing in the Storeys' conduct justified the conclusion that they were in breach of the contract.
[58]
Issue 4: Were the Storeys ready, willing and able to complete the contract?
[59]
[59] The Brittons argued that the Storeys were never ready, willing and able to complete the contract. I reject that submission.
[60] The direct evidence on the issue was given by Ms Trinh Thai, the experienced conveyancer from Lead Conveyancing who handled the proposed settlement. Ms Thai was an impressive witness. Her written and oral evidence explained that the settlement could have proceeded but for the lack of participation from the Brittons. There were sufficient funds from the Storeys and from their lender to cover the purchase price, stamp duty and adjustments.
[61] Ms Britton put to Ms Thai that the settlement could have been conducted as either a paper or a PEXA settlement. Ms Thai agreed. However, the point goes nowhere because the Brittons did not elect for a paper settlement. They refused to communicate.
[62] In any event, the point that the parties may have chosen a paper settlement does not provide evidence that the Storeys were not ready, willing and able to complete the contract. In fact, given their determination to keep the contract on foot, the likelihood is that the Storeys would have grabbed the opportunity to settle with both hands.
[63] Ms Britton put to Ms Thai that the contract had not been stamped and in fact was not stamped until September 2024. However, none of that was established as an impediment to settlement.
[64] Ms Britton also cross-examined Ms Thai on whether the funds were ready. Ms Thai's evidence was that they were. Appropriate finance of $2.6 million had been obtained and was available through the PEXA workspace. The documentation established that even though trust receipts may not have been issued until a day or two later.
[65] I find that the Storeys were ready willing and able to complete the contract at the date the proposed settlement on 16 and 19 August 2024, and at the time the proceeding was commenced, and at the date of trial.[11] As to the position at trial, on 9 June 2025, Mr Storey's evidence is to the effect that nothing material has changed since August 2024 except that less funds will be required because the full deposit has not been paid and the stamp duty has been paid. I accept that evidence.
[60]
[66] It follows from what I have said that the Brittons conducted the case without acknowledging the plain terms of the special conditions. Those special conditions afforded the Storeys "exclusive access" to the property. More than that, the Brittons had access only for a limited purpose. It follows that the Storeys were not squatting or trespassing. The contract afforded them a right to exclusive access.
[61]
[67] Ms Britton argued that the Storeys had what was described as an absence of clean hands. That allegation was not properly pleaded or particularised. And there is nothing in the facts that gives a factual basis for that allegation.
[68] It is important to note that the stance of Mr Britton changed during the course of the litigation. Mr Britton's original defence, filed by his separate solicitors in October 2024 included a claim that he had requested Ms Britton to proceed with the sale on numerous occasions. However, more recently Mr and Ms Britton have reconciled their relationship, and the result has been a completely new defence by Mr Britton that effectively supports the evidence of Ms Britton. Mr Britton blamed the assertions in his old defence on his previous solicitors. No material was filed from the solicitors.
[69] The circumstances, in which Mr Britton filed diametrically opposed defences, were curious but did not require detailed investigation. However, an interesting piece of evidence that was in the end tendered without objection was an email from Mr Britton to Ms Britton in these terms:
[62]
I have made my position very clear with you on multiple occasions verbally and via text message, we signed a contract in February with these buyers to sell to them and settle the property in August, these buyers were at $3.1m to settle back around that time or due to higher offer and to bring their offer up to $3.265m and settle in August with them living in the property up until then. But unfraternally days after you had a better offer come through and tried to cancel the contract and take a new higher offer for the sales, I at that time made my position clear in this regard, but said if you try and do otherwise that I would leave that for you to agree, as you said it needed to happen and the new offer was a significant amount of money higher this would benefit our family immensely. You engaged with many different solicitors and were advised that the contract could not be cancelled, but it might be better to rewrite it in a clear form, as the contract we drafted by you and the buyer and was not a well written clear document. The current buyer did not agree and were happy to continue with the existing contract which. So to be clear my position is to settle the property as per our agreement.
[63]
[70] Specific performance, though a discretionary remedy, will be granted in respect of an executory contract where the defendants have refused to complete, and the contract is capable of being performed, unless the exercise of the discretion would perpetuate an injustice or there is some other good reason for refusing the remedy. Specific performance is available to a seller of land as readily as to a purchaser.[12]
[71] Mr and Ms Storey are entitled to specific performance of the contract. The Brittons have not validly terminated the contract. I will order that the contract be specifically performed. I will hear the parties on the form of the order and on costs.
[64]
[1] This is the date of the contract. It may have been signed on different dates but nothing turns on this.
[65]
[2] The special conditions actually specify that the first instalment of $125,000 was to be paid by "Friday 1 February 2024" but the parties agree that this is a mistake and that this should read "Friday 2 February 2024".
[5] The earlier part of the negotiations was conducted through an intermediary.
[68]
[6] There was some cross-examination on what the word 'here' meant in this text. It must be referring to the property at 72 Cuba Court.
[69]
[7] See the discussion of this topic in Carter, Contract Law in Australia, 8th ed at [31-01].
[70]
[8] An example is Ms Britton's text to Mr and Ms Storey on 27 January 2024 at 7.09am which agrees both the price and that the Storeys could move in early ("today"). The negotiations thereafter thrashed out the one remaining issue - the chattels.
[71]
[9] For example, in her affidavit of 27 May 2025 Ms Britton says that the Storeys have been in possession of the property since 2 February 2024 without the consent of knowledge of the Brittons.
[72]
[10] A case that discusses the futility of an exercise like this, but in different circumstances is Davidson v Bucknell[2011] 1 Qd R 563 at [30].