When Bradley and Diane Pendleton agreed to sign off at $1.215 million in November 2010, for the sale of their Buderim home, one of the terms the buyers had stipulated, was  payment of the $42,000 deposit by installments.

With nothing in the judgment to explain their change of heart, Grant & Tracey French came up with only half of the specified deposit, allowing the sellers to terminate for their breach and re-market the home.

The property was extensively advertised and finally re-sold six months later at $1.1 million, a shortfall of $115,000.

When the Pendletons sued for this loss, together with the expenses of sale, the buyers asserted them to be responsible for the shortfall due poor pest control practices.

Termites, they said – specifically the seller’s failure to erect a viable termite barrier – were the cause of the lower price and it was the sellers’ misfortune to bear full accountability for it.

No valuation evidence was called to support their contention. Neither was a pest expert relied on to prove the cause of the alleged damage and how it had occurred.

On application for summary judgment, the Brisbane District Court had no hesitation in concluding that the buyers’ prospects of successfully defending the sellers specific performance claim at trial, were hopeless.

It ordered a total judgment of $164,000 against the defaulting buyers and ordered that they also pay the Pendletons’ full legal costs of the proceedings.

Pendleton & Anor v French & Anor [2012] QDC 275 Samios DCJ published 12/09/2012


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