Chan v Dainford Ltd [1985] HCA 15

Chan v Dainford Ltd [1985] HCA 15

The contracts were 'instalment contracts' within s. 71(2)(b), and Dainford, by granting a mortgage over the property prior to completion without the purchasers’ consent, was in breach of s. 73(1), entitling the purchasers to avoid the contracts. The subsequent actions for specific performance by Dainford must therefore be dismissed.

Jurisdiction
Australia
Procedural Posture
Appeal / High Court Determination of Appeals From Full Court of the Supreme Court of Queensland
Outcome
Appeals allowed; orders of the Full Court set aside; original judgment in favour of the purchasers restored.
Legal Topics
['instalment Contracts' 'avoidance of Contract' 'mortgage of Land Subject to Contract' 'specific Performance']
['property Law'] ['instalment Contracts' 'avoidance of Contract' 'mortgage of Land Subject to Contract' 'specific Performance']

Case Brief

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Procedural Posture

Appeal / High Court Determination of Appeals From Full Court of the Supreme Court of Queensland

Legal Issues

  1. 1 ["Whether the contracts for sale were 'instalment contracts' within Property Law Act 1974-1978 (Qld) s. 71(2)(b)" 'Whether the vendor mortgaged land contrary to s. 73(1) of the Property Law Act 1974-1978 (Qld)' 'Whether the purchasers were entitled to avoid their contracts under s. 73(2)']

Ratio Decidendi

The contracts were 'instalment contracts' within s. 71(2)(b), and Dainford, by granting a mortgage over the property prior to completion without the purchasers’ consent, was in breach of s. 73(1), entitling the purchasers to avoid the contracts. The subsequent actions for specific performance by Dainford must therefore be dismissed.

Court Disposition

Appeals allowed; orders of the Full Court set aside; original judgment in favour of the purchasers restored.

Orders

  • ['Appeals allowed with costs.' 'Orders of the Full Court of the Supreme Court of Queensland set aside.' 'In lieu, appeals to that Court dismissed with costs.']