- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Greenhill One Pty Ltd v Dreamtech Designs Pty Ltd & Anor  QSC 20
GREENHILL ONE PTY LTD
DREAMTECH DESIGNS PTY LTD & SAN CRISTOBAL PTY LTD
BS742 of 2018
Summary judgment application
18 February 2019
27 and 30 November 2018
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – GENERALLY – where purchaser of a unit purported to terminate the contract for failure to comply with s 206(1) of the Body Corporate and Community Management Act 1997 (Qld) and sued the vendors for a declaration that the purchaser was entitled to a refund of the deposit – where vendors denied there was a failure to comply with s 206(1) and counterclaimed for an order that the deposit held by the agent be released to the vendors and for damages for breach of contract – where vendors applied for summary judgment on the purchaser’s claim and their counterclaim for an order the agent pay the deposit to the vendors and for damages for breach of contract to be assessed – whether the purchaser has no real prospect of showing that the vendors failed to comply with s 206(1) – whether there is no need for a trial of the claim or the counterclaim
Body Corporate and Community Management Act 1997 (Qld), s 205D, s 206, s 207, s 208, s 210, s 318
Electronic Transactions (Queensland) Act 2001 (Qld), s 4, s 11, s 14
Uniform Civil Procedure Rules 1999 (Qld), r 292, r 293
Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd  2 Qd R 202;  QCA 135, considered
Gray v Morris  2 Qd R 118;  QCA 5, considered
Luxottica Retail Australia Pty Ltd v 136 Queen Street Pty Ltd trustee under instrument No 04350946  QSC 162, considered
Pazcuff Pty Ltd v Farmilo  2 Qd R 268;  QSC 230, followed
Stellard Pty Ltd v North Queensland Fuel Pty Ltd  QSC 119, considered
A P J Carroll (Sol) for the plaintiff
M J Campbell (direct brief) for the first defendants (on 27 November 2018)
D Kelly, director of each first defendant, with leave (on 30 November 2018) for the first defendants
Carroll Legal & Compliance for the plaintiff
The plaintiff as purchaser entered into a contract with the first defendants as the vendors to purchase Lot 32 in BUP3465 in the development known as St Tropez Resort for the sum of $766,500. The plaintiff purported to terminate the contract with the first defendants on the basis that the first defendants did not provide the disclosure statement required by s 206(1) of the Body Corporate and Community Management Act 1997 (Qld) (the Act) prior to the contract being entered into, on the basis the disclosure statement that was given was not signed by the seller or the seller’s agent before the plaintiff’s entry into the contract. The plaintiff, in reliance on standard condition 2.4(1)(b) of the contract and s 210 of the Act, claims a declaration that it is entitled to a refund from the first defendants of the deposit of $41,000 paid by the plaintiff.
The first defendants assert a complying disclosure statement was provided to the plaintiff that had been signed by the first defendants or their agent prior to the plaintiff’s entry into the contract on 14 June 2017 and that the plaintiff unlawfully terminated the contract on 13 October 2017. The first defendants seek to recover the deposit held by the agent and claim damages for the loss suffered as a result of the alleged breach of contract by the plaintiff.
The first defendants therefore seek summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) against the plaintiff in respect of the plaintiff’s claim and summary judgment pursuant to r 292 of the UCPR against the plaintiff on the first defendants’ counterclaim for return of the deposit of $41,000 held by the agent, interest on the sum of $41,000, and damages for breach of contract to be assessed. (The first defendants make an alternative claim in their counterclaim for damages for misleading and deceptive conduct, but the summary judgment application does not rely on that alternative claim.)
The facts that I will summarise are those taken from the affidavits relied on by both parties for the purpose of the application. It was apparent that the allegations made by the plaintiff in a shorthand way in the statement of claim overlooked the first defendants’ counter offer made on 14 June 2017 that was a critical event for the purpose of the first defendants’ summary judgment application. As the plaintiff did not bring a summary judgment application, the fact that its statement of claim does not presently accord with the factual matrix now asserted by the plaintiff did not preclude consideration of the first defendants’ application.
Ms Deborah Kelly is a director of Dreamtech Designs Pty Ltd and the other director is her husband Mr Gregg Thompson. Ms Kelly is the sole director and shareholder of the other first defendant San Cristobal Pty Ltd. At all relevant times it appears Ms Kelly was acting on behalf of both first defendants.
On 7 June 2017 the first defendants received contract documents containing a signed offer from the plaintiff to purchase lot 32 via an email from PRD Nationwide Surfers Paradise (PRD) to Ms Kelly. The offer had been signed by Mr Jason Hague who was then the director of the plaintiff and was dated 24 May 2017. It appears from the form of the contract that PRD was the seller’s agent. Mr Scott who is the manager of PRD deposed to being the first defendants’ agent for the sale of lot 32. It does not appear there was any attempt by PRD to ensure the first defendants’ obligations under s 206(1) of the Act were complied with, as the plaintiff had signed the contract before the disclosure statement was even tendered by PRD to the first defendants for signature. That may be explicable by the fact that Mr Hague deposed to receiving the draft contract on 24 May 2017 from real estate agent Amber Werchon who it appears was acting as the purchaser’s agent.
The email from PRD instructed Ms Kelly as follows:
“Please sign and initial where indicated. Once complete please scan and email by return.”
Two forms of stamp had been used by PRD on the documents. One stamp “INITIAL HERE” was stamped at the right hand foot of the printed form of contract, including the proforma terms of contract for residential lots in a Community Title Scheme, and the right hand foot of the two page disclosure statement. The other stamp “SIGN HERE” was affixed at the place for execution by each of the buyer and seller in the consent to receive electronic communication form, the contract and the second page of the disclosure statement.
As it turned out, Ms Kelly and Mr Thompson on behalf of the first defendants rejected the offer embodied in the contract signed by the plaintiff and submitted a counter offer by amending the existing documents and returning them for execution by the buyer. The counter offer was submitted and comprised the following documents:
consent to receive electronic communication form pursuant to the Electronic Transactions (Queensland) Act 2001 (Qld) (the ET Act) dated 12 June 2017 and signed with Ms Kelly’s full signature;
the contract signed on the execution page in full by Ms Kelly;
annexure A – special conditions signed with Ms Kelly’s full signature, but with clause 6 amended by hand and with the amendments initialled by Mr Thompson;
the two page disclosure statement initialled in the bottom right hand corner by Ms Kelly;
the pool safety certificate also initialled in the bottom right hand corner by Ms Kelly.
The consent to receive electronic communication form sets out the full names of the buyer, sellers and agent as providing consent to receive information via electronic communication. The operative part of the form provided:
“By Signing this document, the person/s consent to the use of electronic communication as per the email address and/or facsimile number provided above as a method of communication with the named agent below.”
This counter offer as one PDF document (in respect of which almost every page was initialled in the bottom right hand corner by Ms Kelly) was emailed by Ms Kelly to PRD at 10.37am on 14 June 2017 and then emailed by Mr Scott of PRD to Mr Hague at 11.09am on 14 June 2017. In addition, Mr Scott emailed, as a separate page, the page of the special conditions dealing with the substitute buyer on which Ms Kelly had made an amendment to ensure the buyer and/or the substitute buyer indemnified the seller for all transfer duty assessed on the contract and all related documentation. Mr Scott advised Mr Hague that page required to be initialled and, in fact, there were two stamps placed on the page stating “INITIAL HERE”. Mr Scott requested Mr Hague to send only the second attachment back to him which was the page that required to be initialled. There was no reference in Mr Scott’s email to Mr Hague that he was in the process of having the first defendants sign page 2 of the disclosure statement. At 2.07pm on 14 June 2017 Mr Hague emailed back to Mr Scott the separate page of special conditions where Mr Hague had initialled, as required by Mr Scott.
In the meantime, at 10.53am on 14 June 2017, Mr Scott had emailed Ms Kelly requesting her to “sign the disclosure” and return to PRD. This was a reference to the second page of the disclosure statement that had been initialled by Ms Kelly at the right hand foot of the page, but where there was no signature against the designation “seller/sellers”. Ms Kelly signed her full signature in that space and returned it to Mr Scott by email sent at 11.48am on 14 June 2017.
I infer from the emails exhibited to the various affidavits that Mr Scott did not forward by email to Mr Hague the second page of the disclosure statement signed in full by Ms Kelly, when Mr Scott received it from Ms Kelly. That is, in fact, consistent with paragraph 4 of Mr Scott’s affidavit filed on 22 November 2018:
“I emailed the counter offer to [Mr Hague] at 11:09 am on 14 June 2017. My email and the two attachments are exhibited and marked ‘JH5’ to the affidavit of Jason Hague dated 4 October 2018. Mr Hague called back and said that the counter offer was acceptable, that he would sign the amended page and that I should insert the amended page into the signed documents I had at hand, along with the re-executed page 2 of the disclosure statement which I had obtained from Ms Kelly earlier in the morning. Mr Hague emailed the executed page back to me at 2:07 pm on 14 June. His email and attachment are contained in exhibit ‘DK5 to the affidavit of Deborah Kelly dated 13 November 2018 (along with mine to him.).”
Paragraph 4 of Mr Scott’s affidavit does not purport to set out verbatim the conversation that he had with Mr Hague. In fact, Mr Scott does not expressly state that he informed Mr Hague that he had received the second page of the disclosure statement with Ms Kelly’s full signature. The second sentence of paragraph 4 is equivocal in the sense that Mr Scott is purporting to set out what Mr Hague instructed in respect of the counter offer and that the page of amended special conditions initialled by Mr Hague should be inserted into the contract, but it is not clear whether Mr Scott is saying that he was instructed by Mr Hague to insert the “re-executed” page 2 of the disclosure statement into the contract or whether Mr Scott was reciting what he was going to do, when he inserted the amended special conditions page into the contract. The email that Mr Hague sent back at 2.07pm made no reference to the disclosure statement. Mr Hague’s affidavit filed on 16 October 2018 does not deal at all with any telephone conversation with Mr Scott on 14 June 2017 about the counter offer.
It is not pleaded by the first defendants that Mr Scott received the disclosure statement signed by Ms Kelly on behalf of the plaintiff, although Mr Campbell of counsel submitted that Mr Hague had “constructively” received the page 2 with Ms Kelly’s full signature before he accepted the counter offer and Ms Kelly submitted, on the basis of her interpretation of paragraph 4 of Mr Scott’s affidavit, that the effect of Mr Hague’s request to Mr Scott to insert page 2 with Ms Kelly’s full signature into the contract was to appoint Mr Scott as the agent of the plaintiff to receive that page on its behalf. The summary judgment application was adjourned part heard on 27 November 2018 to give the parties an opportunity to consider matters that had been raised during submissions and to ascertain whether further evidence could be obtained from Mr Scott. Because Mr Scott was on leave, the first defendants did not obtain any further evidence from Mr Scott for the resumed hearing on 30 November 2018, but elected nevertheless to pursue the summary judgment application. Mr Scott’s affidavit does not address directly the propositions now relied on by the first defendants that Mr Scott informed Mr Hague on 14 June 2017 about receiving page 2 of the disclosure statement with Ms Kelly’s full signature and was acting as the plaintiff’s agent for the purpose of so receiving page 2 of the disclosure statement with Ms Kelly’s full signature.
After Mr Scott received the separate page of special conditions initialled by Mr Hague. PRD sent an email at 2.59pm on 14 June 2017 to the plaintiff’s agent Amber Werchon attaching the executed contract and confirming the purchase of the property by the plaintiff. The PDF document that was attached to that email is exhibit JH2 to Mr Hague’s affidavit filed on 16 October 2018. That version includes the page of the special conditions dealing with the substitute buyer that was initialled by Mr Hague on 14 June 2017 and the second page of the disclosure statement that was signed with Ms Kelly’s full signature on 14 June 2017, even though she inserted the date of 12 June 2017 (which was presumably to be consistent with the date she had inserted when she first signed the contract on 12 June 2017). That version of the contract, including ancillary documents, was forwarded by email by PRD to Ms Kelly at 3.27pm on 14 June 2017.
An initial deposit of $1,000 was paid by the plaintiff. The balance of the deposit of $40,000 was then paid. The plaintiff requested an extension of time to effect settlement until 4 December 2017 on the basis the contract was unconditional and the first defendants agreed to that extension on those terms and that time was to remain of the essence. By letter dated 13 October 2017, the plaintiff’s solicitors purported to terminate the contract on the basis that the first defendants breached s 206(1) of the Act. The first defendants rejected that purported termination and proceeded to be ready for settlement on 4 December 2017. The plaintiff did not attend settlement and the first defendants purported to terminate the contract on 8 December 2017.
The parties expressed the issues to be decided on the summary judgment application ultimately in these terms:
whether the ET Act dispensed with an actual signature on the disclosure statement in the circumstances in which the disclosure statement was incorporated with the contract that amounted to the counter offer transmitted by the vendors to the agent by email on 14 June 2017 and then transmitted by the agent to the purchaser by email on 14 June 2017;
if a signature was required on the disclosure statement, whether the one set of initials of Ms Kelly at the right hand foot of the disclosure statement was a sufficient signature on behalf of both vendors;
and the first defendants raised a further issue:
whether the plaintiff by its conduct on 14 June 2017, or subsequent to 14 June 2017, waived either the right to insist on compliance with s 206 of the Act or the right to terminate the contract under s 206 of the Act.
Section 205D of the Act which is in part 1A of chapter 5 provides:
“(1) This section applies in relation to a provision of part 1 or 2 that refers to—
a thing required or permitted to be done by or in relation to a buyer or seller of a lot or proposed lot; or
a thing having been done by or in relation to a buyer or seller of a lot or proposed lot.
The thing may be done, or the thing may have been done, by or in relation to the buyer or seller either—
through an agent who is authorised to act for the buyer or seller in relation to the thing.”
Section 206 of the Act which is in part 1 of chapter 5 relevantly provides:
The seller (the seller) of a lot included in a community titles scheme (including the original owner of scheme land, or a mortgagee exercising a power of sale of the lot) must give a person (the buyer) who proposes to buy the lot, before the buyer enters into a contract (the contract) to buy the lot, a disclosure statement.
The disclosure statement must—
- state …
- include other information prescribed under the regulation module applying to the scheme.
The disclosure statement must be signed by the seller.
The disclosure statement must be substantially complete.
If the contract has not already been settled, the buyer may terminate the contract if the seller has not complied with subsection (1).
The seller does not fail to comply with subsection (1) merely because the disclosure statement, although substantially complete as at the day the contract is entered into, contains inaccuracies.
Contractual effect is given to the contents of the disclosure statements as s 207 of the Act provides that where the contract is entered into, its provisions include the disclosure statement and all material accompanying the disclosure statement; and, under s 208 of the Act, the buyer may rely on the information in the disclosure statement, as if the seller had warranted its accuracy. If the buyer terminates in reliance on the seller’s failure to comply with s 206(1) of the Act, s 210 requires the seller to repay to the buyer any amount paid to the seller towards the purchase under the contract within 14 days after termination.
The operation of s 206 of the Act (as it stood in November 2008) was considered by Jones J in Pazcuff Pty Ltd v Farmilo  2 Qd R 268 where the vendors’ solicitors had sent a letter to the purchaser’s solicitors enclosing the disclosure statements (that had not been signed by the vendors) together with the contract. The purchaser signed and returned the contract to the vendors’ solicitors at which time the contract and the disclosure statements were signed by the vendors. The purchaser contended that before it entered into the contract none of the disclosure statements were signed by the vendors and there was therefore no compliance with s 206 of the Act. The vendors argued that the signature of their solicitors in the letter that accompanied the documents was an effective signing for the purpose of s 206 or there had at least been substantial compliance with s 206. Jones J noted at :
“Consumer protection is clearly one of the significant motivations for the enactment of the provisions of Chapter 5 of BCCMA. It demands of the seller of lots, or proposed lots, the disclosure of information which a buyer could not easily ascertain for himself or herself. It imposes significant safeguards by imposing on the seller warranty for the truth of the information and it provides a significant sanction in that the contract may be cancelled if the information is not accurate.”
In light of provisions such as s 207 and s 208 of the Act, Jones J noted at  “the centrality of the disclosure statement to the contractual rights and obligations of the parties”.
Jones J noted at  that the evident purpose of parts 1A and 1 of chapter 5 of the Act “calls for a strict approach to the fulfilment of their terms” and therefore concluded at  that:
“… the terms of s 206 properly construed requires that there be personal verification by the seller, whether by the seller’s own hand or by another person specifically authorised to do so.”
As the vendors had failed to give the purchaser a disclosure statement signed by the vendors (or a person authorised by them) before the purchaser entered into the contract, Jones J found at  the purchaser was entitled to cancel the contract and recover the deposit. The observations of Jones J in Pazcuff as to approach to the construction of s 206 of the Act and the purpose of the verification of the information in the disclosure statement by the signature of the seller remain apposite to the s 206 of the Act, as it now stands.
In Pazcuff, the contract had been entered into in November 2008, but the issue as to whether there was compliance with s 206(1) of the Act did not arise until more than three months later by which time there had been a number of concessions made by the vendors, including an extension of time for finance approval and the date for settlement. Jones J noted at  that the vendors did not argue there was any question determinable by reference to waiver. Ms Kelly submitted that was implicit recognition of the possibility of entertaining an argument of such a nature. That overstates the effect of the observation, as the question of whether waiver applied was neither argued nor considered in Pazcuff.
Section 11 and s 14 of the ET Act provide:
11 Requirement to give information in writing
If, under a State law, a person is required to give information in writing, the requirement is taken to have been met if the person gives the information by an electronic communication in the circumstances stated in subsection (2).
The circumstances are that—
at the time the information was given, it was reasonable to expect the information would be readily accessible so as to be useable for subsequent reference; and
the person to whom the information is required to be given consents to the information being given by an electronic communication.
14 Requirement for signature
If, under a State law, a person’s signature is required, the requirement is taken to have been met for an electronic communication if—
a method is used to identify the person and to indicate the person’s intention in relation to the information communicated; and
the method used was either—
as reliable as appropriate for the purposes for which the electronic communication was generated or communicated, having regard to all the circumstances, including any relevant agreement; or
proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence; and
the person to whom the signature is required to be given consents to the requirement being met by using the method mentioned in paragraph (a).
The reference in subsection (1) to a law that requires a signature includes a reference to a law that provides consequences for the absence of a signature.
Does the ET Act dispense with an actual signature on the disclosure statement?
The ET Act provides a means by which a statutory requirement for a signature can be met in electronic form, when the three conditions set out in s 14(1) of the ET Act are satisfied. See also s 4(1)(b)(ii) of the ET Act. It therefore can apply to the requirement for a signature specified in s 206(3) of the Act.
Presumably the agent prepared the form of consent to receive electronic communication for the purpose of the requirement in s 11(2)(b) and, possibly, s 14(1)(c) of the ET Act. The form has its limitations as the consent is expressly limited to receiving information via electronic communication, as contemplated by s 11(2)(b) of the ET Act. The ET Act draws a distinction between a requirement to give information in writing and a requirement for signature. It is therefore arguable that the form of consent cannot be relied on for the purpose of s 14(1)(c). The fact that communications between the parties and the agent for the purpose of negotiating the terms of, and signing, the contract and the signing and giving of the disclosure statement were by means of electronic communication is conduct from which it could be inferred that the plaintiff consented to the requirement of a signature on the disclosure statement being met by an electronic communication of the signed disclosure statement.
The first defendants sought to rely on Luxottica Retail Australia Pty Ltd v 136 Queen Street Pty Ltd trustee under instrument No 04350946  QSC 162 and Stellard Pty Ltd v North Queensland Fuel Pty Ltd  QSC 119 to assert that s 14 of the ET Act dispensed with the requirement for a signature altogether on the disclosure statement.
In Luxottica the tenant under a registered lease for a term of five years of retail premises commenced negotiating with the landlord’s real estate agent for a new lease. The tenant and the landlord’s agent were exchanging emails. The agent advised the tenant of the minimum rent that the landlord would accept. When the agent advised the tenant there was an offer from an alternate tenant, the tenant sent a return email accepting the rent the agent had indicated was the minimum the landlord would accept. The landlord then elected to take the offer from the alternate tenant. The tenant claimed for specific performance of an agreement for the grant of a new lease based on the exchange of emails with the landlord’s agent and applied for an interlocutory injunction restraining the landlord from re-taking possession of the premises. Ann Lyons J concluded that there was a serious question to be tried in respect of the tenant’s claim for specific performance of the agreement for lease on the basis that the agent was authorised by the landlord to conclude the negotiations for the new lease.
At  of the reasons for judgment, Ann Lyons J was prepared to accept that the requirement of a signature for the purpose of s 59 of the Property Law Act 1974 (Qld) (PLA) had been satisfied pursuant to s 14 of the ET Act on the basis that the electronic footer of the emails sent by the landlord’s agent conveyed all the information required by s 14(1)(a) of the ET Act, s 14(1)(b) was satisfied as both parties were content to engage in negotiation by email, and the consent required by s 14(1)(c) could reasonably be inferred in the circumstances. It is apparent from the reasons that these matters were found to be arguable on the material relied on for the purpose of the interlocutory injunction application to enable the conclusion at  that the tenant had made out a prima facie case to justify the preservation of the status quo pending the trial.
Stellard arose out of negotiations for the sale of the freehold and business of a service station where the purchasers alleged that the contract was made as a result of an email exchange between an employee of the purchasers, on the one hand, and an employee of the selling agent and the natural person who was admitted to be the authorised agent of the vendor, on the other hand. On the basis of the content of the emails, Martin J concluded at - that there was a binding contract formed when the authorised agent of the vendor accepted the purchasers’ offer, even though it was subject to execution of the contract. In relation to the application of s 59 of the PLA, Martin J at - relied on s 14(1) of the ET Act to treat the requirement of the signature of the vendor as satisfied by electronic communication, as the vendor admitted the natural person who was the vendor’s agent who accepted the purchaser’s offer was authorised to act in the proposed sale, and the consent of the purchasers to the electronic communication could be inferred where the parties had engaged in negotiation by email and where the offer that was accepted was made by email.
The issues raised in this application can be distinguished from those considered in Luxottica and Stellard. In each of those cases the question of a signature arose to satisfy s 59 of the PLA in the context of exchanges of emails relied on as evidence of the making of an agreement between the natural persons exchanging the emails, as agents for the respective principals. The disclosure statement under s 206(1) of the Act is a document that must precede the making of the contract. There is no negotiation by the parties in relation to the content of the disclosure statement. It is a question of whether a complying disclosure statement was given to the purchaser, before the contract was entered into.
In order for the first defendants to rely on s 14(1) of the ET Act to dispense with the requirement of the signature, the conditions set out in each of paragraphs (a) and (b) also must have been fulfilled. Under s 14(1)(a) of the ET Act, the requirement for a person’s signature will be fulfilled by an electronic communication, if a method is used to identify the person and to indicate the person’s intention in relation to the information communicated and the method satisfies either paragraphs (i) or (ii) of s 14(1)(b). In order to satisfy s 206 of the Act, the person’s intention in relation to the information in the disclosure statement, as explained in Pazcuff at , must be the personal verification of the information in the disclosure statement. In light of the fact that there were at least the initials of Ms Kelly on the foot of each page of the disclosure statement, it is not necessary to decide the issue of whether the ET Act dispensed with a signature altogether on the disclosure statement.
Were the initials of Ms Kelly at the foot of the disclosure statement the signature of the vendors for the purpose of s 206(3) of the Act?
There were two aspects to this issue. The first was, where there were two vendors, whether each of the vendors had to sign or make a mark. It is not necessary to deal with that argument, as even on the assumption that one signature or mark by Ms Kelly could be sufficient as a signature on behalf of both vendors which were described as “seller”, there is a real issue to be determined about whether, in fact, the one set of initials at the foot of the disclosure statement could amount, in the circumstances, to a signature of verification of the information in the disclosure statement, having regard to the form of the document and the manner in which it was provided to the plaintiff when the counter offer was made.
In paragraph 23 of her supporting affidavit filed on 14 November 2018, Ms Kelly tried to explain the purpose of her initials on each page of the contract and accompanying documents, including the disclosure statement, in these terms:
“My purpose in signing every page with my initials, including the disclosure statement, was to authenticate and verify each page as the document of the first defendant and to confirm each page as binding upon the first defendant.”
It is not Ms Kelly’s subjective purpose that is relevant, but it is what was conveyed objectively, when Mr Hague received the email from Mr Scott on 14 June 2017 at 11.09am, with the initials of Ms Kelly at the foot of each page of the disclosure statement, but no signature of Ms Kelly appearing in that part of the form that had the stamp “SIGN HERE” for the signature of the seller.
On the state of the evidence adduced on the summary judgment application, it is equivocal whether Ms Kelly’s initials at the foot of each page of the disclosure statement were for the purpose of confirming the disclosure statement was part of the bundle of contractual documents, as her initials appeared to be on other pages of the PDF submitted to PRD by her on 14 June 2017 or whether her initials went further and also constituted personal verification by the first defendants of the information in the disclosure statement, despite the omission of Ms Kelly to sign the disclosure statement, as requested by the agent. This is a matter that appears arguable either way and is not conducive to determination on this summary judgment application. For the same reason, without a signature of any kind on the disclosure statement, it is difficult to see how the first defendants could have satisfied the requirement under s 14(1)(a) of the ET Act.
Did the plaintiff waive the right to insist on compliance with s 206 of the Act?
At the hearing on 30 November 2018 Ms Kelly made submissions on the basis that Mr Scott’s account of what occurred on 14 June 2017 was that he informed Mr Hague that he had received the fully executed page 2 of the disclosure statement and Mr Hague instructed Mr Scott to insert it into the fully signed contract. First, it is not clear that is, in fact, Mr Scott’s evidence. Second, to the extent the first defendants relied on that account and submitted that Mr Hague waived the plaintiff’s right to receive the fully executed page 2 of the disclosure statement, the issue of waiver is not pleaded by the first defendants in their defence. Other than relying on the observation of Jones J in  of Pazcuff, there was no attempt by the first defendants to develop the argument that waiver could apply to the plaintiff’s conduct to exclude reliance on s 206(5) of the Act or to address the effect of s 318 of the Act that provides that a person cannot waive, or limit the exercise of, rights under the Act.
Did the plaintiff waive the right to terminate under s 206 of the Act?
Ms Kelly in her affidavit filed on 14 November 2018 sets out the factual matters on which she relied in argument to constitute a waiver by the plaintiff of the right to terminate under s 206. Again, the first defendants do not plead these facts in their defence or that they amount to waiver on the part of the plaintiff in respect of the right to terminate under s 206 of the Act, or address the effect of s 318 of the Act. At the very least, the first defendants cannot pursue judgment on the basis of the waiver argument which does not accord with the defence.
Is summary judgment appropriate?
The approach of the court to a summary judgment application under either r 292 or r 293 was not a matter of controversy between the parties. The plaintiff’s submissions referred to Gray v Morris  2 Qd R 118 at . In Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd  2 Qd R 202 at  Holmes JA (as the Chief Justice then was) confirmed to similar effect that the test under either r 292 or r 293 was the “no real prospect” test and whether “there is no need for a trial of the claim or the part of the claim”.
Even proceeding on the basis that initials on the disclosure statement could be a signature, there is still an argument to be determined after trial as to whether, in the circumstances of this particular case, Ms Kelly’s initials at the foot of each page of the disclosure statement was a signature for the purpose of s 206 of the Act. I am not persuaded there is no need for a trial of the claim and counterclaim between the plaintiff and the first defendants.
To consider the arguments of the first defendants on waiver properly and to allow the plaintiff to know the case it has to meet on the counterclaim, some precision needs to be brought to the pleading of the first defendants’ defence and counterclaim. After further inquiries are made of Mr Scott (and also Mr Hague), the parties may be able to agree on a statement of the relevant facts and the trial of this proceeding between the plaintiff and the first defendants could be relatively short.
In the meantime, however, if the parties choose to do so, there are aspects of the evidence that need to be clarified in relation to the conversation between Mr Scott and Mr Hague on 14 June 2017.
I am therefore satisfied that the first defendants have not discharged the onus of showing an entitlement to summary judgment, in the light of the current state of the evidence and the allegations pleaded in the defence and counterclaim. I will therefore dismiss the application for summary judgment. After publishing these reasons, I will give the parties an opportunity to agree on a timetable for making written submissions on costs. If appropriate to do so, I will then determine the question of costs on the papers. In order to facilitate this, I will adjourn the question of costs to a date to be fixed. Subject to receiving the parties’ submissions on costs, my inclination is that the first defendants should pay the plaintiff’s costs of the hearing on 30 November 2018, but that otherwise the parties’ costs of the application should be each party’s costs in the proceeding. The hearing on the second day did not progress the matter, as the first defendants had not obtained a further affidavit from Mr Scott. As the affidavits relied on by both parties were deficient in dealing with the conversation between Mr Scott and Mr Hague on 14 June 2017 before the counter offer was accepted by Mr Hague on behalf of the plaintiff, I suggest that the party which ultimately succeeds in the proceeding should receive the costs of the summary judgment application (apart from the hearing on 30 November 2018).
- Published Case Name:
Greenhill One Pty Ltd v Dreamtech Designs Pty Ltd & Anor
- Shortened Case Name:
Greenhill One Pty Ltd v Dreamtech Designs Pty Ltd
 QSC 20
18 Feb 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 20||18 Feb 2019||Defendants' application for summary judgment refused: Mullins J.|
|Primary Judgment|| QSC 58||15 Mar 2019||Costs judgment: Mullins J.|