Dixon, Re [1992] QSC 332

/ - ::::u:::..l.l {Pr -~Kft~ State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (CopjTight in this transcript is yested in the Crown. Copies thereof must not be made or sold \\ithout the \\Titten authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J os No 849 of 1992 IN THE MATTER OF THE REAL PROPERTY ACT 1861-1990 AND THE PROPERTY LAW ACT 1974-1990 and RE\.:·~~.r:•~:; ·:. ·~~,; ,·;w:.~; :::~~UC:D Stc.~:.: r~c;.::;r~;:--;g i.:_.;..:re.;u IN THE MATTER OF AN APPLICATION BY DONALD JULIAN DIXON FOR THE REMOVAL OF A CAVEAT BRISBANE .. DATE 30/09/92 ORDER 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 11 -- ( 300992 HIS HONOUR: On 4 September 1992 this matter came before me in 1 Chambers. The matter was concerned with a caveat that had been lodged by the respondent Brian Bruce Johns on 12 June 1992 and the application was for him to show cause why the caveat should not be removed. The matter having been fully argued on that day, I reserved my decision and delivered 10 reasons on 9 September 1992 in which I concluded that the case was one where, having regard to the background of negotiations and prior contractual arrangements between the parties, the threshold question whether there was a serious question to be tried was satisfied. -. 20 However, I was not satisfied at that stage concerning the question of an adequate safeguard of Mr Dixon's ability to recover damages in the event that he ultimately succeeded. 30 At that point, the only offer made was an offer in vague terms from a 'company in Hong Kong that any damages that were payable would be met by it. I was unsatisfied by that and the matter was therefore adjourned to 23 September when further material was filed, including an affidavit from a man named Aitken who 40 deposed to being a proprietor of property in New South Wales. There was also an affidavit from a man named Tipper on the question of loss. It turns out, according to the material that has been filed this morning, that Mr Tipper is not a 50 valuer, but is a real estate agent and indeed has an interest in the contract that may ultimately be put in place in the event that the application succeeds. ORDER 2 60 -- 2 of 11 -- (~ \ At the end of those proceedings I still remained unsatisfied that, in view of the whole of the material, there was a sufficient safeguard of Mr Dixon's rights in the matter. I adjourned the matter on ~he basis that the respondent would seek a guarantee in a sum sufficient to safeguard the estimated shortfall of $300,000, or alternatively seek some 10 other sort of arrangement that would be satisfactory to the respondent. When the matter came back before me today, there was an affidavit filed from a valuer, the effect of which was that in 20 the market as it exists at the moment, there is not a likelihood of loss having regard to the value of the potential contract with· ViJJa World. There was no further material with respect to the guarantee or any other form of safeguard of the rights of Mr Dixon. 30 Although it appears I have not got a copy of my ramark.s .from 'the last occasion on the file, I recall saying that Mr Ait~en's affidavit was in some respects notable as much for what it did not say as what it did. say, and the question that it seems to 40 me is still questionable on that material is the ultimate availability of funds at some future time when any judgment in favour of Mr Dixon may have to be met. Having regard to the history of the matter and all of the 50 factors that I have referred to, I have come to the conclusion that the balance of convenience does not favour the retention of the caveat on the register. I propose therefore to order that the caveat be removed, and that it follows from that that ORDER 60 3 -- 3 of 11 -- the costs of and incidental to the summons including today's proceedings should be paid by the respondent to the applicant, to be taxed. ORDER 4 10 20 30 40 50 60 -- 4 of 11 -- State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J OS No 849 of 1992 IN THE MATTER OF THE REAL PROPERTY ACT 1861-1990 AND THE PROPERTY LAW ACT 1774-1990 IN THE MATTER OF AN APPLICATION BYDONALD JULIAN DIXON FOR THE REMOVAL OF A CAVEAT BRISBANE· .. DATE 23/09/92 ORDER 1 REV!S::O COPIES ISSUED l Si:.te f!r;!:;o:::ng eurcau,-- Date ) I I D I olr -- 5 of 11 -- 230.992 HIS HONOUR: As I observed in argument, the affidavit of Mr Aitkin goes some way towards addressing the issue of adequate undertakings to pay damages, but this is as notable for what it does not say as for what it says. If the evidence of valuation at 1.1 million dollars is valid, the undertaking falls substantially short of assuring Mr Dixon's ability to 10 recover in the event that he is successful. What I am persuaded to do - and I say this only because there was an attempt to ascertain the extent immediately after the interim reasons as to the quantum of the undertaking and 20 because of the late service of the evidence of valuation - is to indicate that I am prepared to give a short additional time to address the question of the sufficiency of the undertaking in the light of that valuation material. 30 What I propose to do, however, in view of the urgency of the matter, is not let the matter drag on interminably and what I propose to do is to re-list the matter for 9.30 next Wednesday morning, if there are no problems about that from the point of 40 view of counsel, and resolve the matter finally one way or the other then. If you can come to some sort of agreement before that, there is no need to list it. I don't want to run the costs up in the matter or inconvenience anybody. I don't want it to run on any longer. That is the sum total of the 50 situation and Wednesday 9.30 will be the absolute deadline. The order as to costs that I will make is the costs of today's application will be paid by the respondent to the applicant to be taxed, otherwise the costs of the application will be reserved. 60 ORDER 2 -- 6 of 11 -- TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J os No 849 of 1992 IN THE MATTER OF the Real Property Act 1861-1990and the Property Law Act 1974-1990 and IN THE MATTER OF an application by Donald Julian Dixon for the removal of a caveat BRISBANE .. DATE 09/09/92 JUDGMENT 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 7 of 11 -- 0909S ~~ . HIS HONOUR: This is an application for removal of a caveat. 1, The applicant is the registered proprietor of several parcels of land in the Runaway Bay area. The respondent i.s a real estate agent who has, from time to time, entered into contracts with the applicant to purchase the land. The contracts date from 17 September 1988. 10 The pattern has been a failure to settle on the date for completion and renegotiation either of the terms of the sale or the completion date. The final extension prior to events leading ·to this litigation was to expire on 31 May 1992. 20 On 15 May 1992 the two men met. Mr Johns told Mr Dixon that he was not in a position to settle on the completion date. The contract that was to have been so settled was terminated on 4 June 1992 by notice in writing from the applicant's solicitors. At the meeting of 15 May there were discussions about a further contract. The status of _those negotiations is at the heart of the present proceedings .. At the conclusion of the meeting Mr Johns handwrote a memorandum which, according to Mr Dixon, "recorded the substance of what was said in the discussion", and Mr Dixon and Mr Johns each signed one copy of the memorandum and exchanged signed copies. According to Mr Johns, he proposed a new contract for a reduced price to which Mr Dixon agreed. He said that Mr Dixon agreed to arrange for a fresh contract to be drawn up by his solicitors. Mr Johns said that he suggested a 2 30 40 50 60 -- 8 of 11 -- r--' f U~U~;J;.::: settlement in November but Mr Dixon suggested December because 1 he expected to be in Australia then on holidays. Mr Dixon is an airline pilot resident in the United Kingdom. The settlement date and the question of deposit remained unresolved at the end of the meeting. Mr Johns says that 10 Mr Dixon was prepared to have those issues resolved over the next two months. It was submitted on his behalf that a contract was concluded on 15 May 1992. It was submitted that the essential terms of 20 the parties, subject matter, and price had been agreed upon and that therefore he had an equitable interest to support his caveat. I should mention that there is also an affidavit from Mr Schmidt, a real estate agent acti.ng for Mr Dixon in the transaction. He deposes that prior to the meeting Mr Dixon told him that he intended to extend the contract until December. On behalf of Mr Dixon it was submitted that there was no concluded agreement on 15 May 1992. At best there was only an agreement to negotiate about a further contract .. To ·.the extent that there was a verbal agreement or a component of an agreement that was verbal, I was referred to s 59 of the Property Law Act which provides that no action may be brought on a contract f0r _the sal~ .of land. until the contract upon· which :.:'the_: ac.tion . -is .b.rought or 3 30 40 50 60 -- 9 of 11 -- 090992 ' some memorandum or note thereof is in writing and signed by the party to be charged. It is sufficient at this point to say that I have come to the concluf'ion that the case is one where, having regard to the background of negotiations and prior contractual arrangements 10 between the parties of the extent that exists in this case, the threshold question whether there is a serious question to be tried is satisfied. In essence it is into which category discussed in Masters ~ 20 Cfu~eron (1954) 91 CLR 353 at 360 and later cases the discussions on 15 May fall. There can be no doubt that the document which emanated from the meeting is confusingly drawn. At best, it is ambiguous. It is, of course, a layman's · document. That being the case, extrinsic material may be admissible to explain its meaning and intent. 30 The other question is where the balance of convenience lies. I indicated during argument that the evidence, as it stands, as to an undertaking to pay damages on the part of the respondent is unsatisfactory. Mr"Johns himself has made no undertaking. I indicate, as I did during argument, that I remain far from satisfied that an undertaking by a company that carries on business in Hong Kong and is therefore out of the jurisdiction and which is presently said to be a joint venture partner of 4 40 50 60 -- 10 of 11 -- 090392 Mr Johns provides an adequate safeguard of Mr Dixon's ability to recover damages that are awarded to him in the event that he ultimately succeeds. I will go on to say that I am unlikely to be satisfied that the balance of convenience favours Mr Johns if that is all that is offered. 10 As I indicated at the hearing, I will adjourn the matter to enable this question to be further addressed. If the matter is ultimately decided in favour of the respondent on the basis of the additional material, I will expect on that occasion to · finalise directions designed to have the issues between the 20 parties resolved promptly. I ~:vill adjourn consideration of costs until that time. I will formally adjourn the matter until 9. 30 on vlednesday 23 September 1992. 30 40 50 60 5 -- 11 of 11 --