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  • Unreported Judgment

Kaech v Collins

 

[2006] QSC 128

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

DUTNEY J

Claim No 156 of 2005

FRANZ KAECH AND HANNI KAECH

Plaintiff

and

 

CHRISTOPHER JOHN COLLINS

First Defendant

and

 

THYMANIA PTY LTD (ACN 095 165 825)

Second Defendant

CAIRNS

DATE 12/05/2006

JUDGMENT

HIS HONOUR: In relation to your application for leave to withdraw I am satisfied on the material that notice has been given of the intention to make the application and of the application itself. That notice was not given within the time prescribed by the rules but, nonetheless, having regard to the fact that the solicitor has spoken with the first defendant and with his wife since giving notice of his intention to withdraw, that it is an appropriate case in which to abridge the time under rule 990.

HIS HONOUR: I will make an order in terms of paragraph 1 of the application.

HIS HONOUR: This is an application, in essence, for summary judgment by plaintiffs against defendants in an action concerned with a contract for the sale of a lot pursuant to the Body Corporate and Community Management Act 1997.

The short point which is taken before me is that the material disclosed is that the relevant documents were forwarded by facsimile to the plaintiffs who executed the contract and returned the executed contract by facsimile to the agent.

The relevant legislation by section 206 subsection 5 provides that the seller - that being a reference to the seller of a lot in a community title scheme - which this land was - must attach to the contract, as a first or top sheet, an information sheet in the approved form.

Section 206 subsection 7 then provides that the buyer may cancel the contract if the seller has not complied with inter alia subsection 5, and the contract has not already been settled.

Similar legislation, or a similar legislative provision contained within the Property Agents and Motor Dealers Act, was considered by the Court of Appeal in MNM Developments Proprietary Limited and Gerrard, 2005 QCA 230.

At paragraph 18 of his judgment the Chief Justice said this:

“But accepting that assumption for the present, the pages of the warning statement appeared in the midst of a series of pages comprising a different form - the relevant statement, the contract, and the director's guarantee. The legislature intended that a purchaser picking up the contract would necessarily have first to confront the warning statement.

That is achieved by adopting here the ordinary concept of attach, which I am satisfied was plainly the legislature's intention. One could not reasonably say the statement was attached to the contract as its first or top page where the only physical relationship between the documents within the continuous fax was that where the warning statement ended, a separate contract began.”

Justice Williams agreed with the Chief Justice, commenting only in paragraph 44:

“For the reasons given by the Chief Justice I agree that if the relevant documentation is the continuous fax forwarded to the appellant on 26 May then section 366 of the Act was breached; given the nature of the continuous fax it cannot be said that the warning statement was attached to the contractual document as the first or top sheet thereof.”

Justice McMurdo, who completed the members of the Court on that occasion, found it unnecessary in the circumstances to determine that particular point.

Since there appears to be no material difference between the provision there being considered and the present legislative provision, it seems to me that I am bound to conclude that the plaintiff had a right to cancel the contract. In those circumstances, it was entitled to the refund of the deposit paid.

HIS HONOUR: I should note that before the commencement of this present application the solicitors formally acting for the defendants were given leave to withdraw, and they have thus been unrepresented. No material has been filed on their behalf.

Having regard to what I have said, however, judgment will be given in the form of the draft order, which I have signed and placed with the papers.

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Editorial Notes

  • Published Case Name:

    Franz Kaech and Hanni Kaech v Christopher John Collins

  • Shortened Case Name:

    Kaech v Collins

  • MNC:

    [2006] QSC 128

  • Court:

    QSC

  • Judge(s):

    Dutney J

  • Date:

    12 May 2006

Litigation History

No Litigation History

Appeal Status

No Status