That’s the scenario against which solicitors for sellers Anthony Rigby and David Bolton claim they did not bother finalising settlement arrangements in October 2012, because to do so – they reckoned – would have been completely futile in such circumstances where the buyer’s solicitors had already conveyed their clients’ “anticipatory breach”.

They were then, perhaps surprised when buyers Ricky and Jane Dunn – who signed up to the $300k off-the-plan apartment deal in February 2012 – relied upon that failure to purport to terminate the contract and recover the deposit.

It was upon the complexion of these facts that the District Court – on application by the sellers for a declaration that they had validly terminated the Gold Coast contract and were entitled to damages and forfeiture of the deposit – was asked to adjudicate in Friday’s ruling.

In the buyers’ favour had been a number of delays on the part of the sellers’ solicitors in responding to correspondence and providing the signed transfer to their opposite numbers for stamping. They had the purchase funds in their solicitor’s trust account and were ready to settle as required.

The seller’s side appears to have taken a somewhat leisurely approach to specifying a settlement venue and negotiating settlement adjustments but claimed a settlement could have been put together and clear title provided at any reasonable location had the buyers notified they were able to complete on the appointed day.

So which of the “reluctant” protagonists should be held to be in breach?

As a preliminary view, his honour thought a statement that a party was “not in a position to settle” was not necessarily an indication that the party was “not ready willing and able to settle”. This was particularly so in the subject case “given the hour and the fact that no specific arrangements had been made to settlement that day”.

Most likely, said the court, the solicitor was merely saying that in the absence of reasonable notice, “it was too late to seek to make such arrangements” for a settlement that day.

Ultimately however given the gaps in the affidavit accounts and the absence of expert evidence as to contemporary conveyancing practice, the court could not decide either way.  Although the QLS conveyancing protocol was put before his honour, he was not satisfied that it necessarily represented the accepted norms of solicitors acting for buyers and sellers.

Directions were given as to the further conduct of the matter leading to a trial which will allow further evidence of conversations etc as well as the expert evidence that his honour foreshadowed would be appropriate.

Rigby v Dunn [2013] QDC 130 Brisbane McGill SC DCJ 14/06/2013

They are always demanding because any hitch on either side can mean that both deals collapse. It’s even more so if the seller has packed up their belongings out of one house and is already in the moving van bound for home No 2.

Triple settlements occasionally occur but they are rare. Consider this example that was reported recently in the other Sunshine State: Florida, USA.

New York City shock-jock Howard Stern paid $52 million for a Palm Beach oceanfront with 3,600 m2 of living space. The sellers used $11.95 million of those proceeds to buy a condo in nearby Two North Breakers Row (including poolside cabana) and the condo vendors in turn applied $7.4 million of that sale to buy a waterfront five bedder with 650m2 of floor space north of the exclusive Palm Beach Country Club.

Agents involved in the transactions were sworn to strict secrecy and the stacked up deals were only uncovered by titles registry searches.

This three-way deal gives a new dimension to the term “tightly held.”

The bill of rights promises, among other things, full refunds for trips that are cancelled due to mechanical failure, and a backup power source on every ship to keep emergency systems running in the event of a main generator failure but at this stage applies only for North American (US and Canada) passengers.

The CLIA, which represents 25 major companies including Carnival, Royal Caribbean, Norwegian, Holland America and Cunard, has said it has submitted the bill of rights to the International Maritime Organization, “requesting formal global recognition and applicability.”

In reality, the so-called bill of rights adds no significant benefits to cruise ship passengers over and above what is currently provided as standard industry practice and is criticised by many as being merely a public relations fiasco to neutralise the furore over earlier incidents including the Carnival Triumph fire that left passengers stranded aboard a drifting cruise vessel in the Gulf of Mexico for 5 days in February and the Grandeur of the Seas fire in May.

Also in May, Paul Rossington and Kristen Schroder from New South Wales were reported missing as their ship the Carnival Spirit docked in Sydney at the end of a 10 day Pacific cruise. Surveillance footage captured them as they went over a balcony railing outside their cabin on the night of May 8 when the ship was about 65 nautical miles east of Forster, on the mid north NSW coast.

Far more important for passengers is that their ticket imports the terms of the Athens Convention of 2002 or, if it doesn’t, the country of the port of departure or return has confirmed its ratification of that convention.

Andrew and Sharyn Nicholls occupied 18 Charlane St under licence as part of a 2005 instalment contract that requires them to pay 300 instalments of $2,400 over 25 years to owner Jimmy Lee.

The so-called “hire purchase” agreement included a right to construct new boundary fences. Other alterations required Mr Lee’s written consent.

Neighbouring owners to the Nicholls’ north in no 16, were investors Dragan and Vesna Bilic against whom the Nicholls campaigned to force the demolition of a small boundary wall and its reconstruction at the Bilic’s expense .

So extreme did events become that the Bilic’s tenant walked out after having mud thrown at the house daily.

The allegations against Andrew and Sharyn Nicholls included trespass, assault, threats, wilful destruction and harassment – including of the plaintiff’s real estate agent engaged to re-let and then eventually, sell the property – that extended to “continual surveillance” and videoing the Bilics at their Sunnybank home when delivering a letter during which process, Andrew threatened to kill them.

Also alleged to have excavated up to 2 m into the Bilic’s property and to have dumped fill on to it, Andrew then to have convinced the Logan Council – in one of “30 or 40 unwarranted complaints” made to the council and police – that his neighbours should be breached because of the danger created by the rubble.

After re-letting attempts proved futile – the Nicholls posted deterrents on the telephone post between the two properties – the home was ultimately sold in November 2010 for $335,000 – at a $73,000 loss to its worth proven by expert valuation.

The Bilics filed suit seeking damages for among other things, trespass, nuisance and interference with contractual relations.

Also sued was owner Jimmy Lee because – standing to gain a benefit to his property from a new fence or retaining wall – “he permitted [the Nicholls] to act as his agents” and subsequently ratified their behaviour.

None of the defendants appeared at the trial and all the plaintiff’s allegations were accepted with corroboration from two other witnesses, one of whom has himself been subjected to the relentless intimidation.

The trial Judge found the loss on the sale of no 18 to be directly applicable to the Nicholls harassment, “rather than market forces”.

Holding that the Nicholls “intimidatory, humiliating and disgraceful” conduct was unlawful, the court also awarded $30,000 aggravated compensatory damages and a further sum of $30,000 by way of exemplary damages to punish them for “conscious and contumelious disregard for the plaintiff’s rights” and to deter similar future conduct.

The total award was $156,000 plus costs.

Bilic & Bilic v Nicholls & Ors [2013] QDC 110 Beenleigh Dearden DCJ 17/05/2013

Distressed developer Meridian, sold a luxury Airlie beach “Boathouse” resort condominium to Ray Jackson and Darryl & Sue Tedesco in January 2008. The developer scheduled it for completion in February 2011. The buyers did not front for settlement and purported to terminate by reason of alleged misleading and deceptive conduct.

Meridian was subsequently placed into liquidation and in defence to the liquidator’s lawsuit,  the buyers relied also on the expiration of the 3.5 year (from contract date) sunset period specified in Land Sales Act (LSA) s 27 that had rolled around on 2 July 2011, after the scheduled settlement and after the lawsuit had begun.

The plain reading of the section, they argued, was that any developer unable to deliver title within that time no matter how this occurred, was at the mercy of buyers cancelling at their option. Because they had given notice of termination on this ground in November 2011, they claimed to be a beneficiary of this provision.

They had effected the purported termination before a 15 February 2012 amendment to LSA s 27(1)(b) retrospectively constrained – as from the date of its commencement – a buyer’s right to avoid contracts, to circumstances where the delay was “other than as a result of the purchasers default”.

Indeed they claimed, the fact that a LSA amendment was enacted to subsequently eliminate their arguably opportunistic conduct, only bolstered their argument that such conduct was entirely lawful at the time it was done.

So held the Supreme Court in September 2012 when it summarily dismissed the liquidator’s specific performance suit.

On appeal, the liquidators contended that the LSA amendment was made merely “out of an abundance of caution” because such result always applied by operation of the “fundamental legal and moral rule that a man should not be allowed to take advantage of his own wrong”.

On analysis of the arguments, the court noted that s 27 does really not contemplate that the vendor would - without payment of the purchase price - “give” the purchaser a registrable instrument of transfer. “Nor does it contemplate that the transfer be provided irrespective of the performance by the purchaser of its contractual obligations”.

Having thus concluded that the section “was not intended to be read literally”, the court looked further – in accordance with Acts Interpretation Act s 14A - for an interpretation “that will best achieve the purpose of the Act” that construes the critical words of the section “in their conveyancing context”.

In the court’s view it was implicit that a “purchaser” described in s 27 as being entitled to avoid the contract was one who “was not wrongfully failing or refusing to perform those of its obligations under the contract which were concurrent with and dependent upon the obligations of the vendor to provide it with a registrable instrument of transfer”.

Thus the buyer’s purported termination on this ground was ineffective with the court deciding the appeal should be allowed.

The result is that the summary judgement application ultimately failed and that in the normal course of events, the substantive issues relating to alleged misleading and deceptive conduct will proceed to trial in the fullness of time.

The s 27 amendments – made in February 2012 to avoid ambiguity in respect to the sunset date for completion of apartment contracts - have been ultimately found to have been superfluous.

Interestingly, no need was seen at that time to protect land contracts from similar consequences in relation to their s 10A sunset date provisions. Regardless – as a result of this decision – land contracts now enjoy the same immunity.

Meridien AB Pty Ltd & Anor v Jackson & Ors [2013] QCA 121 Brisbane Margaret McMurdo P and Muir JA and Atkinson J 21/05/2013

Grandeur was today set ablaze at sea after what passengers described as “big explosions” and the captain declaring a ‘mayday’ emergency. The seven-night cruise was forced to end early and the ship returning to the US port of Baltimore. All 2,224 passengers were forced to disembark in an unscheduled visit to Freeport, Bahamas and are to be flown back to the US.

Grandeur is a sister ship of the largest cruise ship to base itself in Australia - Royal Caribbean’s Voyager of the Seas – which sails from Sydney during the southern summer. Both ships are registered in Bermuda, the “flag state” of the vessels.

The legal regime that applies to cruise ships is complex. On some occasions, the law applicable to events occurring on the vessel, including personal injury, is the law of the flag state as the vessel is deemed to be a part of the state represented by its flag. On other occasions, the law of the place where the injury occurs, is the applicable law.

The Convention on Limitation of Liability for Maritime Claims (London) 1976 and 1996 protocol allow liability limits for passenger death and injury claims. They have been incorporated into the law of Australia by the Limitation of Liability for Maritime Claims Act 1989.

The convention does not establish a cause of action, rather it simply limits a “seagoing” vessel’s liability for most types of losses in tort as a result of negligence and contract and in particular:-

• injury occurring on board or in direct connection with the operation of the ship
• loss resulting from delay in the carriage by sea of cargo, passengers or their luggage

It applies if the ship is registered in a nation which is a party to the convention or located in the waters of such a nation or on the high seas on a voyage between two such nations. The convention establishes apply a maximum liability for multiple injuries. Under the 1976 Convention the liability limit for the vessel is:

 46,660 SDRs x passenger capacity (up to maximum of 25 million SDRs)

At 46,666 SDRs per passenger, the upper limit per vessel of 25 million SDRs is topped out with a passenger capacity of 536. At 3,138 passengers Radiance’s per passenger cover under the LLMCA regime is 7,967 SDRs or AUD$11,642.

The 1996 protocol came into force in May 2004. The protocol increases per passenger allowance for calculation of the vessel’s liability limit, to 175,000 SDRs and abolishes the per vessel upper limit. Accordingly Radiance’s maximum liability under the 1996 protocol is:-

 175,000 SDRs x 3138 = 550 million SDRs (AUD$804 million)

A shipowner liable is not entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result.

The Convention Relating to the International Carriage of Passengers and Their Luggage by Sea (Athens) 1974, which is not ratified by Australia or the USA, creates a per passenger personal injury claim limit, of 46,666 SDRs. Contributory negligence rules apply but legal costs and interest are in addition. UK (incl Bermuda), Bahamas, Greece, China and Russia are notable ratifying nations.

Fault or neglect is presumed in the case of shipwreck, capsize, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship. It does not apply to injuries occurring in “a marine terminal, station or on a quay”.

A new Athens Convention of 2002 is set to enter into force on 23 April 2014, after the last of the required 10 ratifications were reached in April 2013 which raises the limit at which carriers can set their liability to 250,000 SDRs per passenger.

The 10 ratifying states are: Albania, Belgium, Belize, Denmark, Latvia, Netherlands, Palau, Saint Kitts and Nevis, Serbia and Syrian Arab Republic. It has been also ratified by the European Union.

The carrier has a complete defence if the incident causing injury is an act of war, natural disaster, insurrection or “was wholly caused by an act or omission done with the intent to cause the incident by a third party” eg terrorism.

Cruise ship injury claims are therefore legally complex in terms of deciding the applicable law. Other complexities relating to forum and damages must also be carefully considered to ensure the proper recovery of fair compensation.

The rights of Australian Grandeur passengers will be subject to their cruise contract but there is a good chance Australian law can be made to apply.

So contended CTP insurer, Suncorp – in relation to graphic designer and sex worker Sally-Ann Robbins – arguing her contributory negligence was so extensive, any injury compensation award from the rider’s negligence, should be reduced to zero.

Brisbane’s Supreme Court heard Robbins had “a few southern comforts” at a friend’s home before they arrived at about 11 pm.  There she had 6 -7 drinks and met the admittedly at-fault rider with whom it was decided she would ride pillion to Woolloongabba’s Chalk Hotel, to see where the night would take them.

Approaching the bridge leaning into a curve at high speed, sparks leapt from the right exhaust as it scraped the bitumen. Unable to straighten, the bike hit the median strip and both occupants were hurled tumbling along the road way.

The rider’s blood work revealed a BAC of .134% and notwithstanding bystander testimony that he “smelt like a bar mat”, Robbins claimed that first defendant John Skouboudis had given every appearance of being unaffected by alcohol when she took up his offer.

Disputed also was the extent of her own inebriation, she claiming merely to have been “happy”. But aided by accounts from Princess Alexandra Hospital personnel and a recorded BAC of 0.18%, the court was satisfied for Civil Liability Act purposes, “intoxication” had ben made out.

Robbins commenced personal injury compensation proceedings in March 2012 with the aid of a lawyer, but shortly after she was self-represented and conducted the five-day trial in person.

His Honour was satisfied that by operation of CLA sections 48, 47 and 49 he was obliged to apply a minimum 50% reduction to any assessed damages but was not convinced by the Suncorp argument that damages should be reduced by 100%, to nil.

Partly because “there was nothing to suggest that the plaintiff contemplated travelling with the first defendant until the time he offered to take her”, no greater proportion of contributory negligence was recorded.

Serious injuries certainly, but Robbins’ credibility “was severely damaged” in that she had “misreported her history to the various doctors who examined her” and was to be disbelieved – so held the court – unless supported by corroborating evidence.

Her injuries included a pneumothorax; ruptured spleen, pancreas and kidney; pelvic fractures; concussion and a transverse L5 spinal fracture. She also sustained scarring to her face, knees and abdomen and for all that, general damages were assessed at just $18,000.

Her loss of income claim was undermined by the fact that she had declared income for the 2007 year of only $2800 and future ocupational incapacity was contradicted by evidence of having performed at least 16  shifts at Gabba night spot, Cleo’s on Nile, over a three month period in the year following the accident.

In the end, the court was satisfied that the injuries did reduce earning capacity but in the absence of any reliable evidence to prove its extent, the amount allowed was just $15,000 for the years up to trial and $175/week into the future, discounted out to $110,000.

The total damages were assessed at $240,000 which on a 50% contributory negligence apportionment, resulted in judgment in her favour against Suncorp, in the sum of $120,000.

Robbins v Skouboudis & Suncorp Metway Insurance Limited [2013] QSC 101 Brisbane Martin J 22/04/2013

“At the very least it would seem that the solicitors acted in a way which was contrary to the objects of the Workers’ Compensation and Rehabilitation Act (WCRA)”, said the court in the context of a “recent invention” argument about exactly how Tim Schonell had sustained his ladder related scaffold injury at the Paddington Barracks construction site in June 2008.

“In the ordinary course of litigation, an allegation of recent invention would be met by a signed statement by the person accused of the invention to demonstrate the consistency of the person’s account. That cannot occur in this case because of the method used by the plaintiff’s instructing solicitors to take instructions”.

Rather than prepare a statement for the plaintiff to sign – the conventional course preferred by His Honour – the plaintiff had given instructions on versions of a lawyer-prepared third person account of events. Because the parties agreed between them on production of a redacted version of this record, the court left undecided whether such a document was “a written statement made by the claimant” and therefore disclosable under s 279.

When cross-examined as to inconsistencies between the earlier version of the incident put to medical specialists his lawyers had briefed and the slightly different version he gave from the witness box, Schonell explained that his “solicitor had a little difficulty understanding some of the terminologies I was using as well. It was foreign to him what I was talking about. I don’t know whether he missed it then.”

The ‘terminology’ variations had mostly been concerned with “various height of objects, including the ladder and the fact the planks were aluminium, not wood”.

Had Schonnel been believed that his loss of balance when stepping from the scaffold to the ladder and consequent knee twisting injury – was due to his left foot being caught between the platform planks (the later version), rather than merely attempting to return to the platform (the earlier version) – the employer’s admitted failure to deploy “plank clamps” to prevent the scaffold planks slipping, would likely have been enough to notch up a win.

But His Honour found the plaintiff “to be a person given to exaggeration and to claiming greater an injury than he actually suffers”. He also concluded that as “an intelligent man who would have been able to describe the mechanism of the injury in simple terms”, it was unlikely that the earlier version was erroneous and more likely the later version was a fabrication or embellishment.

In such circumstances, the absence of “plank clamps” – however negligent it might have been not to provide them – made not a jot of difference to the causative elements of the injury.

Damages – claimed at $2 million – were assessed at $1.43 million including $125,000 for general damages for a 33% whole person impairment with very significant ongoing pain.

As a result of the benign ruling on fault that followed from how the injury was found to have occurred, Schonell’s claim ended with a dismissal against which an appeal has subsequently been lodged.

Schonell v Laspina, Trabucco & Co Pty Ltd [2013] QSC 090 Martin J 11/04/2013

The ruling published yesterday reveals that a court was not prepared to accept hat CBA’s failure to properly serve court papers on owner, Ian Morrisby and tenant Chloe Taylor, was a “mere irregularity”.

The bank obtained its judgment in January and in early April it started the action to remove the occupants.

The District Court in Brisbane ruled that the failure to serve documents with at least 10 days notice, when considered along side “other deficiencies” was enough to warrant dismissal of the bank’s application.

CBA had failed to serve another necessary party, Leanne Hicks – who maintained the Thurso Court property in lieu of rent – and who if not a tenant, was at least an “occupant” for whom “procedural fairness” must also be accorded.

Since Christmas 2012, Commonwealth Bank has filed more than 300 “recovery of possession of land” writs against its customers in the Brisbane, Maryborough, Hervey Bay, Beenleigh, Townsville, Ipswich,  Rockhampton and Maroochydore courts.

Commonwealth Bank of Australia v Morrisby [2013] QDC 107 Brisbane Horneman-Wren SC DCJ published 14/5/2013

Having fronted with only $1000 to hold the property, John and Julie McLeay agreed that a further $204k top up deposit would be paid within 7 days.

That deadline came and went as did other extended dates. The sellers – John and Virginia Willmott – called for settlement and when this inevitably did not occur, they terminated the contract.

Although the property re-sold for a modest loss of only $55,000, the Willmotts elected to sue for the entire unpaid deposit and commenced proceedings in the Southport District Court in February 2012.

Clause 2.3 (3) of the pro forma REIQ contract specifies that the seller can recover the unpaid deposit as a debt but this was resisted by the McLeays on the basis that such recovery “in addition to damages which might be claimed under clause 9″, would “confer an unfair windfall on the seller”.

With no decided cases on point, the judge at first instance sided with the McLeays and held that the issue was of sufficient complexity to warrant consideration in a trial setting.

The Willmotts promptly appealed and in April, three appeal judges ruled against the “unjust enrichment” proposition. They had no hesitation in declaring that the McLeays must front up with the unpaid the deposit plus the Willmotts’ costs of the legal proceedings.

In more accomodating news for them, the McLeays’ recent deposit victory was upheld on appeal in which judgment was delivered on 24/05/2013.

Willmott & Anor v McLeay & Anor [2013] QCA 084 Brisbane Holmes and Fraser and White JJA 16/04/2013