Brightman & Ors v Royal Pines Projects Pty Ltd (No 2) [2024] QSC 150

SUPREME COURT OF QUEENSLAND CITATION: Brightman & Ors v Royal Pines Projects Pty Ltd (No 2) [2024] QSC 150 PARTIES: ADAM BRIGHTMAN (first applicant) AND JODIE BRIGHTMAN (second applicant) AND MARY MAGGIE MAE CRUZ (third applicant) AND RAYMOND CAVITE CRUZ (fourth applicant) AND CAMERON ROBERTS (fifth applicant) AND REBECCA ANNING (sixth applicant) AND ADRIANA EUGENIA HERNANDEZ SILVA (seventh applicant) AND JARRAD GLENN BUNT (eighth applicant) AND JESSICA LEE DEMCHENKO (ninth applicant) AND DIANNE MARIA MASSEY (tenth applicant) AND VISHENDRAN NAIDU (eleventh applicant) AND B CORPORATION (QLD) PTY LTD ACN 651 109 894 (twelfth applicant) AND GEORGE STANLEY NEWBOLD (thirteenth applicant) AND BRENDA ZHOYA (fourteenth applicant) AND MICHAELA ERIKA MORELAND -- 1 of 6 -- 2 (fifteenth applicant) AND REMY ARRAN MORELAND (sixteenth applicant) AND KRISTIE-LEE ANNING (seventeenth applicant) AND DESMOND LAFFY (eighteenth applicant) AND TRINA LAFFY (nineteenth applicant) AND CORNELIA CHRISTINE DAY (twentieth applicant) AND COLIN JAMES BURTON (twenty-first applicant) AND PERRIE BURTON (twenty-second applicant) AND SILVANA TRPESKA (twenty-third applicant) v ROYAL PINES PROJECTS PTY LTD ACN 118 164 999 ATF BRISBANE CREDITS TRUST (respondent) FILE NO/S: BS 8832 of 2024 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 15 July 2024 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Applegarth J ORDER: THE ORDER OF THE COURT IS THAT: 1. In respect of each of the contracts identified in the schedule to this order, it is declared that: (a) by reason of the implication in that contract (Contract) of a term requiring that each party -- 2 of 6 -- 3 co-operate to allow the other party the benefit of the Contract, upon request by the purchaser under the Contract (Purchaser), the respondent 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; (b) the respondent has, despite request by the Purchaser, failed to permit and facilitate such access; and (c) the respondent is not entitled to call for completion of the Contract on 16 July 2024. 2. In respect of each of the said contracts, the respondent 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. 3. The respondent pay the applicants’ costs of the proceeding. CATCHWORDS: CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – TERMS ESSENTIAL TO ENABLE PERFORMANCE – where there are contracts for the sale of apartments “off the plan” – where each contract contemplates the buyer having a financier and where the contract contemplated that finance would be required for the buyer to perform the contract – where the settlement date is set by the contract 14 days after a notice by the seller – where each buyer requests access to the relevant apartment to permit the buyer’s valuer to perform a valuation for finance purposes – where the seller gives notification of settlement – where the buyers’ requests for their valuers to inspect are not responded to for a week – where construction works prevent such an inspection occurring for the same period – where the contract does not include a “subject to finance” clause or an express term specifying an entitlement to access the property in the 14-day period – where there is an implied duty to co-operate – where the seller, by failing to permit access to the buyer’s valuer for at least 7 days after the applicant’s request, breached the implied duty to co- operate – what is the appropriate form of order Brightman v Royal Pines Projects Pty Ltd [2024] QSC 149 -- 3 of 6 -- 4 COUNSEL: N Ferrett KC and A Choy for the applicants B O’Donnell KC and J Sargent for the respondent SOLICITORS: Broadbeach Law Group for the applicants Hickey Lawyers for the respondent [1] Upon delivering my decision1 on Friday 12 July 2024, I indicated the general form of orders that I proposed to make and requested the parties to confer about and submit a suitable form of order, including an order that would resolve any outstanding issue as to the date or dates after which the respondent could fix settlement for each buyer. [2] The parties have been unable to agree on the form of order. They invited me on the afternoon of 15 July 2024 to resolve the matter on the papers in circumstances in which the respondent proposes to appeal my decision. [3] The applicants sought a declaration substantially in the form of paragraph 1(a) of the originating application. It was in these terms: “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 respondent is required to permit access to the real property (Property) the subject of the Contract by a valuer appointed by the Purchaser in sufficient time to permit 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”. [4] The respondent proposed the following form of order: “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 respondent is required to permit access to the real property (Property) the subject of the Contract by a valuer appointed by the Purchaser for the purpose of obtaining finance in advance of completion of the Contract within a reasonable time after receiving a request from a Purchaser”. [5] In the absence of any submissions, I apprehend that the respondent’s concern with the applicants’ form of order is that the respondent presently does not know, and I have not determined, what a “sufficient time” is in the case of each buyer. This was one reason why I urged the parties at the conclusion of the argument before me on Thursday 11 July 2024 and when I delivered my decision on Friday 12 July 2024 to confer and agree about the extension of the date for settlement that would be required to remedy the respondent’s breach in failing to “provide access within a reasonable time of the request being received on 1 July 2024.”2 For example, a buyer having been delayed by at least 7 days in having a valuer conduct an inspection by the respondent’s failure to respond to a request, and faced with the respondent’s stated position that the respondent was not 1 Brightman & Ors v Royal Pines Projects Pty Ltd [2024] QSC 149. 2 Being the breach I found at [87]. -- 4 of 6 -- 5 obliged to allow access, probably would have lost a period of a week in arranging for a valuer to gain access, and the parties might have agreed that a new settlement date would be, say, 23 July 2024. [6] Such agreement has not been possible. Therefore, in the absence of agreement on the point, and in the absence of a hearing on the matter, I am disinclined at this stage to make the order sought by the applicants in paragraph 1(d) of their draft order that “the respondent is not entitled to call for completion of the Contract on or before 26 July 2024”. [7] I return to the form of paragraph 1(a) of the order. [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 [13] The one-week delay in the respondent even responding to the request was unreasonable. The delay of that duration amounted to a breach of duty. The nature and duration of the breach allowed me to infer that at least some of the buyers had not been left with sufficient time to obtain a valuation and finance on the strength of such a valuation prior to 16 July 2024. [14] The urgency with which the matter came to be listed and heard so as to focus on the legal issue that was identified by the parties at the directions hearing on Friday 5 July 2024 means that I am not in a position to determine what is a “sufficient time” in the -- 5 of 6 -- 6 circumstances of each buyer to have a valuer complete the valuation task prior to completion. That would depend on each buyer now placing evidence before the court about the time expected for the valuer to provide a valuation after it is able to access the premises in accordance with the protocol the respondent has now established, and evidence about the time required by its financier to complete the process of providing finance after it receives the valuation. [15] The absence of information about the timing of the valuation process in each case disinclines me to adopt paragraph 1(a) of the applicants’ draft. I do not know what “sufficient time” is for the valuer in each case to provide the advice. All I know from the evidence is that some valuers were eventually able access the premises last week. In the circumstances, I am disinclined to make the declaration in paragraph 1(b) of the applicant’s draft, which flows from the declaration in paragraph 1(a) of their draft. [16] The respondent did breach the implied duty that I have found in not permitting access “within a reasonable time after receiving the request”. Therefore, I am inclined to adopt those words from the respondent’s form of declaration, and to declare: “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 respondent 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”. -- 6 of 6 --