DISTRICT COURT OF QUEENSLAND
CITATION:
Glynn v Brown & Anor (No. 2) [2016] QDC 314
PARTIES:
MICHELE GLYNN
(applicant)v
MALCOLM BROWN
(first respondent)and
LAND PASTURES QUEENSLAND PTY LTD
ACN 161 344 896
(second respondent)FILE NO/S:
DC No 1207 of 2016
DIVISION:
Civil
PROCEEDING:
Originating Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
2 December 2016
DELIVERED AT:
Brisbane
HEARING DATE:
16 November 2016; 17 November 2016
JUDGE:
Reid DCJ
ORDER:
The Originating Application is dismissed.1.
It is declared that the undated Call Option Agreement (“the Option Agreement”) made between the applicant as grantor and the second respondent as trustee for the Land Pastures Queensland Unit Trust as grantee and agreed between those parties to commence on 1 September 2013 in respect to property being certain chattels referred to in an annexed inventory and a residential lot in a Community Titles Scheme being more particularly described as Lot 20 on Survey Plan 1984493, County of Ward, Parish of Gilston, Local Government: Gold Coast, Community Management Statement 38466, Title Reference 50721500 having an address of 151 Varsity Parade, Varsity Lakes in the State of Queensland (“the subject property”):-2.
was not validly terminated by the purported Notice of Termination of Call Option Contract dated 25 May 2015 served by the applicant on the second respondent; anda.
has since 19 March 2015 been valid and enforceable.b.
3. It is declared that the General Tenancy Agreement (“the GTA”) relating to the subject property executed by the applicant and the second respondent as trustee on 8 August 2016 to start on 1 September 2013 and to end on 31 August 2018:-
a. has not been validly terminated by a purported Notice to Vacate and Surrender Possession dated 9 June 2015 served by the applicant upon the second respondent or otherwise;
b. the second respondent has been since 1 September 2013 and is the lawful tenant under the GTA of the subject property;
c. the first respondent has been and is a lawful licensee of the second respondent in respect of the subject property.
4. It is declared that due to the applicant’s conduct in serving the purported Notice of Termination of Call Option Agreement dated 25 May 2015 and the purported Notice to Vacate and Surrender possession of 9 June 2015 and her otherwise unlawful repudiation of her obligations under the Option Agreement, that the second respondent is entitled to an equitable set-off in respect of some of the rent which would be otherwise owing since 1 August 2015 under the GTA in respect of the subject property such that the total amount of the rent so owing is reduced to the sum of $21,377.00.
5. Subject to orders 12 and 13 hereof, the applicant have judgment against the second respondent in the sum of $21,377.00 as referred to in order 4 hereof.
6. The Contract for the sale of land dated 29 July 2016 between the second respondent as buyer and the applicant as seller of the subject property (“the Contract dated 29 July 2016”) be specifically performed and carried into execution.
7. By on or before 4:00pm, 6 December 2016, the applicant must require in writing that the Australia and New Zealand Banking Group Limited ACN 005 357 522 (“the applicant’s mortgagee”):-
a. certify in writing to the solicitors for the second respondent by on or before 4:00pm, 7 December 2016 all monies required by the applicant’s mortgagee by way of principal, interest and costs due and owing under the Mortgage Registered No 712342996 over the subject property as at 13 December 2016;
b. attend the Court ordered settlement referred to in order 9 hereof with a duly executed discharge in registerable form in respect of Mortgage No 712342996.
8. The applicant must by on or before 4:00pm, 7 December 2016, email to the solicitors for the second respondent at its address for service a copy of the applicant’s requirement in writing to the applicant’s mortgagee referred to in order 7 hereof.
9. At 11:00am on 13 December 2016, the applicant, the applicant’s mortgagee and the solicitors for the second respondent must attend the office of the Registrar of the District Court of Queensland at the QEII Courts of Law, 415 George Street, Brisbane in the State of Queensland (“the Court ordered settlement”).
10. At the Court ordered settlement, settlement of the Contract dated 29 July 2016 is to take place in accordance with the Settlement Statement being Exhibit “CL-5” to the Affidavit of Carrie Lee affirmed 1 December 2016 and filed by leave today.
11. At the Court ordered settlement, the Registrar authorise the applicant’s mortgagee to hand to the solicitors for the second respondent all documents of title if any as required and a Discharge of Mortgage No 712342996 in registerable form upon receipt from the second respondents of all monies required by way of principal, interest and costs as certified by the mortgagee as due and owing in respect of Mortgage No 712342996.
12. The judgment in favour of the applicant referred to in order 5 hereof shall be stayed until the completion of the Court ordered settlement and the agreement or assessment of costs referred to in order 14 hereof has occurred.
13. The second respondent shall be entitled to set-off against the judgment in favour of the applicant referred to in order 5 hereof:-
a. the difference, as paid by the second respondent to the applicant’s mortgagee at the Court ordered settlement between:-
i. the amount paid by the second respondent to the applicant’s mortgagee to obtain the duly executed Discharge of Mortgage No 712342996 in registerable form; and
ii. the amount of $361,823.77;
b. the costs as agreed or assessed pursuant to order 14 hereof.
14. The applicant pay the first and second respondents’ costs of and incidental to this proceeding on a standard basis as agreed in writing between the parties within 7 days of the date hereof or thereafter as assessed.
15. The first and second respondents are to serve a sealed copy of this order:-
a. on the applicant at her email address for service;
b. on the applicant’s mortgagee at its address for service referred to on its website http://www.anz.com/auxiliary/contact-us/service-legal-documents/ namely:
The Proper Officer
Australia and New Zealand Banking Group Limited
ANZ Centre Melbourne
Level 9, 833 Collins StreetDocklands VIC 3008
16. Liberty to apply to the applicant, the applicant’s mortgagee and the second respondent on one day’s email notice in writing to each of these parties to the others
CATCHWORDS:
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – PERFORMANCE – where the applicant and respondents entered into a residential tenancy with a call option agreement- where the respondents exercised an option to purchase a property from the applicant – where the applicant sent invalid notices purporting to terminate – where the respondents ceased to meet rental obligations under the tenancy arrangement – where the applicant and respondents entered into a second contract for the sale of the property – where the applicant frustrated settlement and purported to terminate the agreement – whether the contract can be specifically performed – whether the respondents are entitled to equitable damages
COUNSEL:
The applicant appeared on her own behalf
M P Amerena for the First and Second respondents
SOLICITORS:
The applicant appeared on her own behalf
Accuro Legal for the First and Second respondents
On Friday 2 December 2016 I delivered my reasons for judgment in this matter and invited submissions on the form of the order.
Counsel for the respondents persuaded me that as the rental payments to which I have refereed were payable under the Lease and not under the Call Option Agreement or Contract of Sale for the Property it is appropriate for that sum of $21,377.00 to be the subject of a separate order in favour of the applicant against the second respondent, rather than being accounted for as part of the settlement figures on settlement of the contract of sale, as I had originally envisaged.
If the sum required to pay out the existing mortgagee was significantly less, nothing would turn on that determination but, where the proposed settlement figures attached to an affidavit of the respondents’ solicitor, and filed by leave on the day I delivered judgment, indicated that there may be in fact insufficient funds to discharge the mortgage different considerations apply.
In my view there would be a risk that the second respondent might have to pay to the applicant that sum for rent payments, and then be left with an order for costs, very probably in excess of the rental payment, which might be left unsatisfied. That would in my view be an unsatisfactory and unfair outcome.
Therefore, I order:
The Originating Application is dismissed.
It is declared that the undated Call Option Agreement (“the Option Agreement”) made between the applicant as grantor and the second respondent as trustee for the Land Pastures Queensland Unit Trust as grantee and agreed between those parties to commence on 1 September 2013 in respect to property being certain chattels referred to in an annexed inventory and a residential lot in a Community Titles Scheme being more particularly described as Lot 20 on Survey Plan 1984493, County of Ward, Parish of Gilston, Local Government: Gold Coast, Community Management Statement 38466, Title Reference 50721500 having an address of 151 Varsity Parade, Varsity Lakes in the State of Queensland (“the subject property”):-
a. was not validly terminated by the purported Notice of Termination of Call Option Contract dated 25 May 2015 served by the applicant on the second respondent; and
b. has since 19 March 2015 been valid and enforceable.
It is declared that the General Tenancy Agreement (“the GTA”) relating to the subject property executed by the applicant and the second respondent as trustee on 8 August 2016 to start on 1 September 2013 and to end on 31 August 2018:-
a.has not been validly terminated by a purported Notice to Vacate and Surrender Possession dated 9 June 2015 served by the applicant upon the second respondent or otherwise;
b.the second respondent has been since 1 September 2013 and is the lawful tenant under the GTA of the subject property;
c.the first respondent has been and is a lawful licensee of the second respondent in respect of the subject property.
It is declared that due to the applicant’s conduct in serving the purported Notice of Termination of Call Option Agreement dated 25 May 2015 and the purported Notice to Vacate and Surrender possession of 9 June 2015 and her otherwise unlawful repudiation of her obligations under the Option Agreement, that the second respondent is entitled to an equitable set-off in respect of some of the rent which would be otherwise owing since 1 August 2015 under the GTA in respect of the subject property such that the total amount of the rent so owing is reduced to the sum of $21,377.00.
Subject to orders 12 and 13 hereof, the applicant have judgment against the second respondent in the sum of $21,377.00 as referred to in order 4 hereof.
The Contract for the sale of land dated 29 July 2016 between the second respondent as buyer and the applicant as seller of the subject property (“the Contract dated 29 July 2016”) be specifically performed and carried into execution.
By on or before 4:00pm, 6 December 2016, the applicant must require in writing that the Australia and New Zealand Banking Group Limited ACN 005 357 522 (“the applicant’s mortgagee”):-
a.certify in writing to the solicitors for the second respondent by on or before 4:00pm, 7 December 2016 all monies required by the applicant’s mortgagee by way of principal, interest and costs due and owing under the Mortgage Registered No 712342996 over the subject property as at 13 December 2016;
b.attend the Court ordered settlement referred to in order 9 hereof with a duly executed discharge in registerable form in respect of Mortgage No 712342996.
The applicant must by on or before 4:00pm, 7 December 2016, email to the solicitors for the second respondent at its address for service a copy of the applicant’s requirement in writing to the applicant’s mortgagee referred to in order 7 hereof.
At 11:00am on 13 December 2016, the applicant, the applicant’s mortgagee and the solicitors for the second respondent must attend the office of the Registrar of the District Court of Queensland at the QEII Courts of Law, 415 George Street, Brisbane in the State of Queensland (“the Court ordered settlement”).
10.At the Court ordered settlement, settlement of the Contract dated 29 July 2016 is to take place in accordance with the Settlement Statement being Exhibit “CL-5” to the Affidavit of Carrie Lee affirmed 1 December 2016 and filed by leave today.
11.At the Court ordered settlement, the Registrar authorise the applicant’s mortgagee to hand to the solicitors for the second respondent all documents of title if any as required and a Discharge of Mortgage No 712342996 in registerable form upon receipt from the second respondents of all monies required by way of principal, interest and costs as certified by the mortgagee as due and owing in respect of Mortgage No 712342996.
12.The judgment in favour of the applicant referred to in order 5 hereof shall be stayed until the completion of the Court ordered settlement and the agreement or assessment of costs referred to in order 14 hereof has occurred.
13.The second respondent shall be entitled to set-off against the judgment in favour of the applicant referred to in order 5 hereof:-
a.the difference, as paid by the second respondent to the applicant’s mortgagee at the Court ordered settlement between:-
i.the amount paid by the second respondent to the applicant’s mortgagee to obtain the duly executed Discharge of Mortgage No 712342996 in registerable form; and
ii.the amount of $361,823.77;
b.the costs as agreed or assessed pursuant to order 14 hereof.
14.The applicant pay the first and second respondents’ costs of and incidental to this proceeding on a standard basis as agreed in writing between the parties within 7 days of the date hereof or thereafter as assessed.
15.The first and second respondents are to serve a sealed copy of this order:-
a.on the applicant at her email address for service;
b.on the applicant’s mortgagee at its address for service referred to on its website http://www.anz.com/auxiliary/contact-us/service-legal-documents/ namely:
The Proper Officer
Australia and New Zealand Banking Group Limited
ANZ Centre Melbourne
Level 9, 833 Collins StreetDocklands VIC 3008
16.Liberty to apply to the applicant, the applicant’s mortgagee and the second respondent on one day’s email notice in writing to each of these parties to the others.