District Court

Bakers Creek Developments P/L atf for Bakers Creek Trust v Pacific Homes (Mackay) P/L & Anor [2014] QDC 237 (14/D45) Durward SC DCJ 16 October 2014

Full-text: QDC14-237.pdf


PRACTICE & PROCEDURE – CONTRACTS – BREACH – SPECIFIC PERFORMANCE - whether first defendant in breach of three contracts as buyer of residential land – failure to complete in time – whether willing or able – alleged oral terms prior to execution of written contracts that are contrary to written terms – both parties legally represented at material times – no allegation by first defendant of any misleading or deceptive conduct by plaintiff – no equitable defence – no hardship made out – where second defendant on behalf of first defendant has not fully disclosed financial circumstances – where plaintiff has shown prima facie that first defendant and arguably second defendant had financial resources not disclosed – where onus of proof of hardship not discharged – whether specific performance should be granted

PRACTICE & PROCEDURE – SUMMARY JUDGMENT APPLICATION – whether any real prospect of first defendant successfully defending all or part of plaintiff’s claim – whether there is a need for a trial of the claim or part of the claim – where first defendant in clear breach of the contracts – we know defence made out – whether summary judgment appropriate to bring dispute to finality.

Uniform Civil Procedure Rules considered

Rule 5 - Philosophy - overriding obligations of parties and courtRule 292 - Summary judgment for plaintiff