Brittain v Kaleoti Pty Ltd [2013] QDC 53

DISTRICT COURT OF QUEENSLAND CITATION: Brittain v Kaleoti Pty Ltd [2013] QDC 53 PARTIES: ROBERT HENRY PATRICK BRITTAN and KATARINA BRITTAN (Plaintiffs) AND KALEOTI PTY LTD AS TRUSTEE FOR THE MARK ROBERTS FAMILY TRUST ACN 112 718 840 (Defendant) FILE NO/S: 3515/12 DIVISION: Civil PROCEEDING: Applications ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 14 March 2013 DELIVERED AT: Brisbane HEARING DATE: 4 December 2012 JUDGE: Reid DCJ ORDER: Leave be granted to make the amendments to the claim set out in amended claim that appears at page 3 of Exhibit GRR-1, pursuant to r377(1) of the Uniform Civil Procedure Rules 1999 (Qld) Judgment for the Plaintiff against the Defendant in the sum of $455,229.71 The defendant pay the plaintiffs’ costs of and incidental to the application on the indemnity basis as agreed or assessed. The defendant pay the plaintiffs’ costs of and incidental to the proceeding on the indemnity basis as agreed or assessed. CATCHWORDS: Summary Judgment – Contract for Sale of land – Damages CASES REFERRED TO General Credits Limited v Tawilla Pty Ltd [1984] 1 Qd R 388 Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd (2009) QCA 135 -- 1 of 13 -- 2 COUNSEL: B. Kidston for the plaintiff No appearance for the defendant SOLICITORS: Greg Ryan Solicitors for the plaintiff [1] The plaintiffs’ claim in this action is for damages for breach of a contract for the sale of land by the plaintiff to the defendants together with interest and costs. [2] Before me the plaintiffs applied for orders that: 1. Leave be granted to make the amendments to the claim set out in the amended claim that appears at page 3 of Exhibit GRR-1, pursuant to r 377(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”); 2. Summary judgment be entered against the defendant, pursuant to r 292 of the UCPR; 3. The defendant pay the plaintiffs’ costs of and incidental to the proceeding on such basis that the Court considers appropriate; 4. The defendant pay the plaintiffs’ costs of and incidental to this application on such basis as the Court considers appropriate; 5. Such further or other relief the Court considers appropriate; [3] The plaintiff also sought alternative orders to those numbered two and three above. In view of the orders I shall make in this matter, it is unnecessary to set out those alternative orders. [4] I should add that after the matter had come before me the plaintiff ascertained that the defendant company had been placed in liquidation. Consequently the matter was transferred to the Supreme Court. On 18 February 2013 an order was made in that -- 2 of 13 -- 3 court giving the plaintiff leave to proceed nunc pro tunc, and the matter was transferred back to the District Court. Leave to Amend the Claim [5] The plaintiffs’ solicitor, on 31 October 2012, sent a letter to the defendant, which is self-represented, by email and by post to its address for service at a P.O. Box number on Bribie Island. [6] The letter attached a copy of the proposed amended claim (see para 4 of the affidavit of Gregory Robert Ryan). The proposed amendments were as follows: Changing the name of the defendant in the pleading as follows: Kaleoti Pty Ltd. As Trustee for the Mark Roberts Family Trust ACN 112 718 840 Amending the claim for relief as follows: (a) Damages for repudiated and/or breach of contract in the sum of $250,000 to); (b) Interest on any award of damages pursuant to section 47 of the Supreme Court Act 1995 (Qld); (c) Costs to be assessed; and (d) Such further or other orders relief as the honourable Court considers appropriate. [7] The amendment of the name of the defendant was so that it conformed with the usual practice in such matters and did not affect the nature of the claim against it. Indeed, in the amended statement of claim, which was not sought to be amended in any way, para 2 provides as follows: “At all times material to this proceeding, the defendant: -- 3 of 13 -- 4 (a) was and is a company duly incorporated according to law and capable of being sued in its corporate name; (b) was and is the trustee of the Mark Roberts Family Trust (“the trust”); (c) was acting in its capacity as trustee of the trust; (d) had one Mr Mark Roberts (“Mr. Roberts”) as its Director and duly authorised agent for all purposes material to this proceedings.” [8] In General Credits Limited v Tawilla Pty Ltd [1984] 1 Qd R 388 McPherson J dealt with orders being made by consent in an action in which the defendant was liable upon a guarantee of moneys lent to another. The plaintiff proposed, and the defendant was prepared to consent to a judgment against the defendant by name with the words “as trustee of (a named family trust)” following the defendant’s name. [9] His Honour held that, as a trustee who properly incurred a debt in the course of acting as trustee was personally liable in respect of that debt unless such a personal liability had been excluded and as a common law judgment for a money sum or debt could not be enforced by execution levied upon trust assets even though the judgment be founded on a debt incurred by the judgment debtor in the capacity of trustee, the words “as trustee of the (named) trust” would have no legal significance or effect and ought to be excluded from the judgment. [10] In my view therefore, there can be no basis for opposing the application to amend the claim by deleting the words “as trustee for the Mark Roberts Family Trust” in the title. [11] The other amendments to the claim are inconsequential. They really are matters of clarity of language and grammar and nothing turns on the amendments. They will also be allowed. -- 4 of 13 -- 5 Summary Judgment [12] The substantive matter before me was the application for summary judgment pursuant to r 292 of the UCPR. In order to succeed the plaintiffs need to satisfy me that that the defendant has no real prospect of successfully defending the plaintiff’s claim and that there is no need for a trial of the action. If those pre-conditions are met, I then have a discretion whether to give judgment for the plaintiffs and may make such orders as are appropriate (See Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd (2009) QCA 135 esp at [66]-[78]). [13] The defendant, which has filed a Notice of Intention to Defend and an amended defence of 2 November 2012 did not appear before me, despite its name being called three times. [14] The affidavit of Gregory Robert Ryan sworn 3 December 2012 and filed before me by leave swears to service of the material on which the plaintiff relies: by letter addressed to the defendant at its address for service, P.O. Box 2005, Woorim Qld 4507 and by an email letter enclosing the relevant material to the defendant at its email address of [email protected]. [15] It is clear from perusal of the Notice of Intention to Defend and Defence that the P.O. Box number referred to was the address for service of the defendant. Furthermore it is clear that the email address to which I have earlier referred was the email address taken from the Defence. I might add that the affidavit of service of -- 5 of 13 -- 6 Mr Ryan refers to the document having been sent to him at his email address said to be [email protected]. When I raised this matter with the plaintiffs’ counsel he indicated to me that this was a typographical error. He referred me to the actual exhibit “GRR-3”, which was attached to the affidavit. It is clear from that actual exhibit that the letter was in fact emailed to the address “[email protected]” and that the inclusion of the letter “h” between “mark” and “roberts” in the body of the affidavit was a typographical error. In the circumstances I am satisfied that the defendant was properly served with the application and supporting material. [16] No material has been filed by the defendant to resist the application and, as I have said, it did not appear before me. [17] Much of the amended statement of claim has been admitted. Paragraphs 2 to 14 inclusive have been admitted with the exception of para 8. The defence makes no reference to that paragraph of the amended statement of claim at all. It is thus deemed to have been admitted pursuant to the provisions of r.166 of the UCPR. Consequently it is common ground that the plaintiffs as sellers and the defendants as buyers entered into a contract of sale dated 1 December 2007 by which it was agreed to sell rural property located at Bongaree, Queensland for the sum of $800,000. Settlement was to occur on 8 May 2008. A deposit of $8,000 was paid by the defendant. Furthermore it is agreed that the defendant was satisfied with the building and pest inspection and that the agreement thus became unconditional. Subsequently the parties agreed to vary the date for settlement, effectively to 6 June 2008. -- 6 of 13 -- 7 [18] The defendant pleads non-admissions to all of the matters alleged thereafter. The affidavit of Gregory Ryan filed on 20 November and that of Robert Henry Brittan filed on the same day substantially attest to all of these allegations in the amended statement of claim. [19] In particular I am satisfied on the material that: On or about 21 May 2008 the plaintiffs’ solicitors sent a facsimile to the defendant’s solicitors that, relevantly, included settlement figures for settlement of the agreement which at that stage was proposed to be 22 May 2008; On that same day the defendant’s solicitor advised the plaintiffs’ solicitor that the defendant would not settle the agreement for sale on 22 May; It had been agreed between the parties that if settlement did not occur on 22 May 2008 settlement was to be extended to 6 June 2008 with penalty interest payable at the rate of 9 per cent per annum from 8 May 2008 and time was to remain of the essence; On or about 22 May 2008 the plaintiffs’ solicitors sent a facsimile to the defendant’s solicitors that relevantly provided; “We note your telephone advice yesterday that your client will not be settling today. Accordingly, pursuant to the earlier agreement of our respective clients, settlement is extended to 6 June 2008 with time remaining of the essence and with penalty interest as set out in a fax to you dated 24 April 2008. We request that you forward transfer documents for signing.” On or about 4 June 2008 the plaintiffs’ solicitors sent a facsimile to the defendant’s solicitors that relevantly included the settlement figures pursuant to the agreement for settlement on 6 June 2008 and relevantly stated “please forward transfer documents urgently.” On or about 5 June 2008 the defendant’s solicitor advised the plaintiffs’ solicitor that the defendant would definitely not be able to settle the agreement on 6 June 2008: -- 7 of 13 -- 8 On or about 6 June 2008 the plaintiffs’ solicitors sent a facsimile to the defendant’s solicitors that relevantly provided: “We confirm your telephone advice yesterday that your client is definitely not able to settle today. We will be taking our clients’ instructions and will advise you in due course.” On 6 June 2008: (1) The defendant did not attend the settlement place at the settlement time; (1) The defendant did not pay or offer to pay to the plaintiff the sum of the balance purchase price calculated pursuant to the agreement; (1) The plaintiffs were willing to settle; (1) But for the facsimile that passed between the parties the plaintiffs would have been ready and able to settle, and I am satisfied they would have done so if required on 6 June 2008; [20] In the circumstances I am satisfied that the defendant failed to comply with the provisions of the agreement as varied by the variation agreement and breached the agreement by failing to settle on the due date. I am further satisfied that the defendant thereby evinced an intention not to be bound by the terms of agreement as varied by the variation agreement and repudiated that varied agreement. [21] On 10 June the plaintiffs’ solicitors on their behalf sent a facsimile to the defendant’s solicitors in which the plaintiff; (1) terminated the agreement as varied; (1) forfeited the deposit and; (1) reserved the plaintiffs’ rights. -- 8 of 13 -- 9 [22] Perusal of the defence indicates that the non-admission of the facts I have just set out was on the basis that having made reasonable enquiries the defendant remained uncertain of the truth or otherwise of the allegations, did not have access to the information, was not a party to the matters detailed and was not aware of what was in the mind of the plaintiffs. These of course are of no relevance in circumstances where the plaintiffs have filed affidavit material to support the allegations and there is no contrary evidence. [23] One other matter that is pleaded is that the non-admission was also made because “any alleged variations were non-compliant with the Property Agents and Motor Dealers Act,” or because “the alleged variations to the purported contract that the plaintiffs rely on were not permitted pursuant to PAMDA compliance”. No particulars of any such non-compliance are pleaded and it is difficult to understand the contention. [24] In his submissions, counsel for the plaintiffs said that presumably the pleading intended to refer to ch 11, Pt 2 of the Act which concerns disclosure by way of the provision of warning statements to prospective purchasers of residential property in Queensland. Reprint number 3A was the version of the Act in force at the time of the agreement by which the settlement date was extended. Section 365 has no application since it operates to defer the time the contract became binding, and that had already occurred at the time of the variation agreement. Similarly ss 366 – 366D cannot apply. They concern the provision of a warning statement in respect of a “proposed relevant contract”. A binding contract had already been entered into at the time of the variation agreement. The rights conferred under s 367 of the Act only apply if there has been a failure to comply with the relevant provisions of s -- 9 of 13 -- 10 366. The Act does not expressly operate to require a second warning statement to be given when varying a contract that has already been entered into. The objects and purpose of the Act are set out in s 10 and more specifically in s 363. There is no need to comply with the requirement of PAMDA each time the settlement date is extended, as the defendant appears to contend, for them to be fulfilled. [25] I accept that the PAMDA argument has no merit and is wrong in law. In my view there is no proper basis to the allegation that has been pleaded and in any case the absence of particularity about it means that it is really impossible to discern what the defendant is alleging. In the absence of a properly pleaded defence and in the absence of material and submissions to support the defendant’s contention I find it is without merit. [26] The balance of the statement of claim relates to the particularisation of the plaintiffs’ loss, to which I shall shortly refer. The defendant similarly does not admit the allegations contained therein. The only positive matters raised are the allegation that: 7…“[T]he plaintiffs have by their laches refused, failed or neglected to act so as to mitigate any such loss or damage as alleged. Particulars Although the plaintiffs were at all material times fully aware of the facts relied upon in their statement of claim, they were nevertheless guilty of prolonged inordinate and inexcusable delay in bringing action and seeking the relief claimed therein and they thereby caused or permitted the plaintiff to believe as in fact it did that they, the plaintiffs, did not intend to make the claim herein or any claim against the defendant and in this belief the defendant acted to its prejudice, and has otherwise been prejudiced. 8…In the premises the plaintiffs, by their conduct, waive their right (if any which is not admitted, but which is specifically denied) to claim the alleged or any relief against the defendant, it -- 10 of 13 -- 11 is inequitable and unjust to grant the plaintiffs the alleged or any relief. [27] The defendant has, as I have said, not filed material to support these vague allegations. [28] The facts on which the defendants rely are that on 10 June 2008 at the direction of both the plaintiff and the defendant Bribie Island First National, the Estate Agents who had been appointed in respect of the matter, released the deposit of $10,000, without deducting any amount of commission, to the plaintiffs. It is also said that the plaintiffs incurred additional legal costs in the sum of $600 in relation to the agreement. [29] The plaintiffs tried to sell their property following the defendant’s repudiation of the contract, in order to mitigate their loss. Between 7 July 2008 and 19 May 2011 the plaintiffs listed the property for sale with Bribie Island First National Real Estate, initially for an asking price of $825,000, then from February 2009 until January 2010 at an asking price of $775,000 and then until May 2010 at an asking price of $695,000. The property was advertised on numerous websites including that of First National, Bribie Island Real Estate, Domain, Realestate.com, ABC Real Estate, Homehound and What It’s Worth. The property was also advertised for sale in the Bribie Weekly on four occasions between 4 July and 12 September 2008. Open houses were conducted and colour brochures advertising the property for sale were prepared. [30] Eventually, by an agreement in writing dated 19 May 2011 the plaintiff sold the property for the sum of $575,000. The allegation in the statement of claim that the fair market value of the property at relevant times was $575,000 is not specifically -- 11 of 13 -- 12 denied. Instead it is not admitted in very general terms (see paragraph 7 of the defence). [31] Furthermore, the plaintiffs assert that between 6 June 2008 and 19 May 2011 they incurred costs and expenses in the sum of $35,516 in relation to the property and received income in the sum of $62,430.42. [32] It is further asserted that but for the defendant’s breach they would have received the sum of $795,818.62 on the settlement date on 6 June 2008, being the balance purchase price as adjusted pursuant to the terms of the agreement together with penalty interest as agreed from 8 May to 6 June 2008 of 9 per cent per annum. They assert they would also have incurred agent’s commission in the sum of $22,495 [33] In such circumstances the plaintiffs’ loss is calculated as follows: (a) Balance purchase price due on settlement date $795,818.62 Plus additional legal costs $600.00 Plus resale agreement costs $16,308.00 Plus property holding costs $35,516.46 Less agreed agents commission $22,495.00 Less adjusted resale purchase price $574,970.74 Less property holding income $62,430.42 Total $188,346.92 [34] The affidavit of Robert Henry Patrick Brittan filed 20 November 2012 supports these factual allegations in the statement of claim. [35] In addition the plaintiffs are entitled to interest. As at 6 June 2008 the plaintiffs’ loss was some $773,323.00. I would allow interest thereon at 10 per cent per annum until the 16 June 2011, which amounts to some $234,115.59. I would allow interest -- 12 of 13 -- 13 on the amount of the damages, namely $188,346.92, from 16 June 2011 to date, amounting to $32,767.20. In all therefore I would allow interest in the sum of $266,882.79. Accordingly I would calculate the plaintiffs’ claim and interest in the sum of $455,229.71. Summary [36] In my view there can be no doubt having considered the material in this case and having regard to the provisions of r 292 that the plaintiff ought to be entitled to Judgment. No valid defence to the claim has been raised. I am satisfied of the requirements of r292 of the UCPR and of the appropriateness of entering judgment for the plaintiffs. [37] Consequently I give judgment for the plaintiff against the defendant in the sum of $455,229.71, being a claim of $188,346.92 and interest of $266,882.79. [38] After hearing submissions as to costs, I order: (a) The defendant pay the plaintiffs’ costs of and incidental to the application on the indemnity basis as agreed or assessed. (b) The defendant pay the plaintiffs’ costs of and incidental to the proceeding on the indemnity basis as agreed or assessed. -- 13 of 13 --