A reluctant seller has been ordered to complete the second stage of a $20.5 mil  Sunshine Coast wellness resort sale with the Supreme Court registrar empowered to execute the transfer and releases should the seller refuse to do so.

Kim Carroll and Heidi Meyer signed up the $17.1 mil sale of their 4.07 ha property on the Buderim escarpment – complete with development approval for a 111-room five-star luxury hotel and conference resort – in August 2021.

The buyer – Alex Seckler – signed a further contract for the $3.4 mil acquisition of the adjoining Aquilla Retreat from a company controlled by Carroll with both contracts to settle contemporaneously on 15 September.

The Aquilla land contract contained a provision warranting that the owner of the Aquilla business would enter into a business sale contract for its transfer to the buyer.

Because Carroll Co purported to terminate the Aquilla land contract by reason of the buyer’s failure to agree the terms of the business contract prior to the scheduled settlement, only the vacant land contract completed.

Carroll notified the buyer by email on 6 October stating he no longer wished to sell and “any previous contract between us [is] now null and void”.

The dispute was over $180k in deposits the sellers had in hand for forward wellness retreat bookings – that they preferred not to part with –  which were among the assets of the business the buyer was to acquire at a $1 nominal purchase price.

Sekler lodged a caveat and when the seller did not front for settlement when called on to do so on a second occasion, filed court proceedings in Brisbane for orders that the contract be specifically performed.

The matter came before Justice Peter Flanagan in November who noted that the Aquilla land contract did not expressly make the sale of “either contemporaneous with or contingent upon any agreement to transfer the business”.

The relevant clause “only records the seller’s warranty that the directors of Aquila Retreat Space Pty Ltd will enter into an agreement for the transfer of the business” which can occur at any time up to or after settlement of the land contract sale.

In those circumstances, Carroll Co could not rely on the alleged breach – of not entering into a business sale contract at that time – to terminate or resist an order that the land contract be performed.

“It follows that the respondent’s purported termination of the Contract by email of 6 October 2021 constitutes an unlawful termination and the applicant is entitled to an order that the Contract be specifically performed,” Justice Flanagan decided.

The orders made require settlement to occur in Maroochydore at 2.00 pm on 15 December 2021. Carroll Co was ordered to pay Sekler’s costs of the dispute.

Sekler v Kim Carroll Investments Pty Ltd [2021] QSC 312 Flanagan J, 1 December 2021


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