Willmott & Anor v McLeay & Anor

[2013] QCA 84

Queensland Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Summary judgment
3. › Statutory pre-conditions
4. › Whether defendant has no real prospect of successfully defending claim
5. › Whether there is no need for a trial
6. › Questions of law on undisputed facts
7. › Uniform Civil Procedure Rules 1999 (Qld), r 292
1. Practice and Procedure
2. › Summary judgment
3. › Residual discretion
4. › Whether discretion survives once statutory pre-conditions satisfied
5. › Whether appeal is from exercise of discretion
6. › Uniform Civil Procedure Rules 1999 (Qld), r 292
1. Contract
2. › Construction and interpretation
3. › Standard form contracts
4. › REIQ contract for sale of land
5. › Deposit provisions
6. › Whether right to recover unpaid deposit as liquidated debt survives termination
7. › Whether right to recover deposit complementary to or alternative to termination remedies
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Contractual provision for indemnity costs as component of damages
5. › Whether contractual right to indemnity costs requires claim for damages
6. › Whether provision plainly and unambiguously provides for indemnity costs

Quick Take

Under the REIQ standard form contract, a seller's right to recover an unpaid deposit as a liquidated debt under cl 2.2(3) accrues when payment is required and survives termination of the contract; it is not limited to cases where the contract is affirmed. Where the only issues on a summary judgment application are questions of contractual construction on undisputed facts, and those questions are relatively straightforward, the matter should be resolved summarily rather than sent to trial. A contractual provision entitling a party to claim legal costs on an indemnity basis as a component of damages does not, without more, entitle that party to indemnity costs where no claim for damages has been made.