Special Projects (QLD) Pty Ltd v Simmons
[2012] QCA 205
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Special Projects (QLD) Pty Ltd v Simmons[2012] QCA 205
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Special Projects (QLD) Pty Ltd v Simmons[2012] QCA 205
Special Projects (QLD) Pty Ltd v Simmons[2012] QCA 205
SUPREME COURT OF QUEENSLAND
CITATION: | Special Projects (Qld) Pty Ltd v Simmons [2012] QCA 205 |
PARTIES: | Special Projects (Qld) Pty Ltd |
FILE NO/S: | Appeal No 463 of 2012 SC No 10248 of 2011 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 10 August 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 July 2012 |
JUDGES: | Chief Justice, Fraser JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: | 1.That the appeal be allowed; 2.That the declarations and orders made on 20 December 2011 be set aside; 3.That the respondent pay the appellant’s costs of and incidental to the application and appeal, to be assessed on the standard basis. |
CATCHWORDS: | Statutes – Acts of parliament – Interpretation – General approaches to interpretation – Whole Act to be considered – where appellant and respondent entered a put and call option deed granting the respondent the right to purchase two lots – where those lots had been partially resumed and had vested in the Crown – where that resumption had been acknowledged by the parties – whether the Land Sales Act 1984 applies to a contract for the sale of land part of which has been resumed under the Acquisition of Land Act 1967 Acquisition of Land Act 1967 (Qld), s 12, s 12A Acts Interpretation Act 1954 (Qld), s 14A, s 32A Land Sales Act 1984 (Qld), s 2, s 5, s 6, s 8, s 9 Land Title Act 1994 (Qld), sch 2 Sustainable Planning Regulation 2009 (Qld), sch 19, sch 26 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, followed Conde v Gilfoyle [2010] QCA 109, cited Francis v NPD Property Development Pty Ltd [2005] 1 Qd R 240; [2004] QCA 343, cited Luke v Inland Revenue Commissioners [1963] AC 557, cited R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166, cited Three Pty Ltd v Body Corporate for Savoir Faire Community Titles Scheme 3841 [2008] 2 Qd R 568; [2008] QCA 167, cited Wentworth Securities Ltd v Jones [1980] AC 74, applied |
COUNSEL: | D Gore QC for the appellant K Fleming QC for the respondent |
SOLICITORS: | Phil Shakespeare for the appellant Short Punch & Greatorix for the respondent |
- CHIEF JUSTICE: The fundamental issue in the appeal is whether the avoidance and termination provisions of the Land Sales Act 1984 apply to a contract for the sale of land part of which has been resumed under the Acquisition of Land Act 1967.
- On 18 March 2011, the appellant and the respondent executed a put and call option deed in relation to Lots 170 and 171 bordering Surfers Paradise Boulevard at Surfers Paradise. It granted the respondent an option to purchase, to be exercised by 8 February 2012. The parties subsequently entered into a Deed of Variation, on 1 April 2011: it is not necessary to explore the content of that deed. Under these contractual arrangements the respondent paid the appellant a security deposit in amounts aggregating $100,000.00.
- A month before the parties executed the put and call option, the Department of Transport and Main Roads resumed a small portion of each lot: 29.5 square metres from Lot 171 (leaving a balance of 452.6 square metres) and 30.5 square metres from Lot 170 (leaving 451.2 square metres). By force of s 12 of the Acquisition of Land Act, as from the gazettal of that resumption on 18 February 2011, the resumed land vested in the Crown, leaving the appellant a right to claim compensation.
- The parties acknowledged the resumption in their agreement. Special Condition 6 provided as follows:
“6.RESUMPTION COMPENSATION
6.1The Buyer acknowledges that part of the Land is subject to be taken, pursuant to the Acquisition of Land Act, by the Department of Transport and Main Roads. The area of Land to be taken is shown in the attached diagram marked ‘Resumed Land’.
6.2Provided the area and location of Land to be resumed is the same or less than the area shown on the diagram marked “Resumed Land”, the Buyer will raise no objection and is not entitled to terminate this Contract. If the Land is otherwise affected, the Buyer’s rights are not affected by this clause.”
- The resumed land was shaded on the attached diagram. The land resumed was in fact a little less than the area shown on the diagram. Under clause 6.3, the appellant assigned its right to claim compensation to the respondent.
- On 4 August 2011, Crown Law informed the appellant of the registration of a plan of survey dated 21 April 2011, number 243229, which delineated the new lots (Lots 18 and 20) owned by the appellant, and Lots 17 and 19, the resumed land, vested in the Crown.
- On 30 September 2011, the respondent’s solicitors gave notice to the appellant’s solicitors of the termination of the option deed and deed of variation, in reliance on s 9(5) of the Land Sales Act. The purported termination was premised on its being a contract for the sale of a “proposed allotment” within the meaning of that legislation.
- The provisions of the Land Sales Act at the relevant time (Reprint 5B) were as follows:
“5Application of Act
- This Act applies to a sale or purchase of a proposed allotment, or a proposed lot, wherever the agreement under which the sale or purchase was entered upon was made, if-
- when the proposed allotment becomes an allotment, it will be situated in Queensland; or
- when the proposed lot becomes a registered lot, it will be situated in Queensland.
(2)A reference in any provision of this Act to a sale or purchase of a proposed allotment or a proposed lot shall be construed as a reference to a sale or purchase entered upon by a vendor or purchaser under an agreement made after the commencement of the provision in which the reference occurs.
6Definitions
In this Act-
…
proposed allotment means a single parcel of land, other than a lot within the meaning of this Act, the boundaries of which are shown, or to be shown, on a plan of survey that is to be registered under the Land Act1994 or Land Title Act1994.
…
8Restriction on selling
(1)A person may sell a proposed allotment of freehold land only if, when the purchaser enters upon the purchase of the allotment –
- if there is no operational work for the proposed allotment – there is an effective development permit or compliance permit for reconfiguring a lot for the allotment; or
- if paragraph (a) does not apply – there is an effective development permit or compliance permit for the operational work associated with reconfiguring a lot for the allotment.
Maximum penalty – 200 penalty units or 1 year’s imprisonment.
(1A)A person may sell a proposed allotment of State leasehold land only if, when the purchaser enters upon the purchase of the allotment, the lessee has the Minister’s approval, under the Land Act 1994,[1] (to subdivide the land.
Maximum penalty – 200 penalty units or 1 year’s imprisonment.
(3)An agreement made in contravention of this section is void and any person who had paid money thereunder shall be entitled to recover the amount thereof, together with the amount of interest (if any) that has accrued in respect of that amount since the money was so paid, by action as for a debt due and owing to the person by the person to whom the money was paid.
9Identification of land
(1)Before a purchaser enters upon a purchase of a proposed allotment, the vendor must give the purchaser-
- a disclosure plan and disclosure statement for the proposed allotment; or
- a copy of the plan of survey for the proposed allotment approved by the local government under the Planning Act.
Maximum penalty – 100 penalty units or 6 months imprisonment.
(2)The disclosure plan must include the following-
- a copy of any plan for reconfiguring a lot for the allotment forming part of a development permit or compliance permit mentioned in section 8(1)(a);
…
(3)The disclosure statement must be signed by the purchaser and vendor and state the following–
…
- if a development permit or compliance permit mentioned in section 8(1)(a) is subject to conditions–the conditions;”
…
(5)If the vendor or the vendor’s agent contravenes this section, other than subsection (3)(a), (b) or (h), the purchaser may avoid the instrument relating to the sale by written notice given to the vendor or vendor’s agent before the vendor gives the purchaser the registrable instrument of transfer for the allotment.”
- The learned primary judge held that the plan of survey number 243229 was the relevant plan of survey. The term “plan of survey” is defined in the Land Title Act as including “a plan that the registrar requires the registered proprietor of a lot to lodge”. Her Honour held that because that survey plan did not issue until 26 July 2011, which was after the date of the varied option deed, the land subject to the option was a “proposed allotment” within the meaning of s 6 of the Land Sales Act. The judge went on to hold that because under s 8(1)(b) there was “no effective development permit or compliance permit for the operational work associated with reconfiguring a lot for the allotment”, the agreement between the parties was void (s 8(2)); and that because the appellant had not complied with the requirements of s 9(1) (disclosure plan and statement/plan of survey), the respondent had effectively terminated the agreement on 30 September 2011 (s 9(5)).
- The appellant challenged the judges’ conclusion that the agreement related to the sale or purchase of a “proposed allotment” (s 5), because by the terms of the deed, “the appellant was offering to sell the whole of Lots 170 and 171 to the respondent, together with the right to claim compensation for the loss of small parts of Lots 170 and 171 in the event that the resumption took its course”. Counsel referred to Francis v NPD Property Development Pty Ltd [2005] 1 Qd R 240, for a submission that there are limits to the construction of the Land Sales Act.
- By the time of the deed the resumed areas had been divested from the appellant and vested in the Crown. The respondent contended that the appellant therefore could not pass title to that resumed land, as recognised by the assignment in the deed of the appellant’s right to compensation, and that properly construing the agreement as a whole, the appellant was offering to sell the balance of Lots 170 and 171 remaining after the resumption, and in respect of the resumed portions, compensating the respondent by assigning the statutory right.
- There is no need to determine this issue because of my consideration of what I characterised at the outset as the fundamental issue in the appeal, whether the avoidance and termination provisions of the Land Sales Act apply where land has, as here, been resumed.
- Counsel for the appellant submitted that the legislature did not “intend that a contract will be void upon the happening of an event over which neither of the parties has any control, and the prevention of which is outside the scope of the circumstances prescribed by the statute for the avoidance of its dire consequences… (there is) the presumption against an interference with private rights relating to property other than by the clearest of language”. Counsel for the respondent supported the approach taken by the learned judge, which was that in view of the conclusion that the subject matter was a “proposed allotment”, the provisions of sections 8 and 9 necessarily applied.
- The terms of s 8(1) refer to “operational work for the proposed allotment”, suggesting subdivision of land for proposed development, and to requirements for a “development permit” or “compliance permit” for the reconfiguration of lots, concepts relevant not to resumption, but to land development. A development permit is a well known and integral part of the regime provided for by the Sustainable Planning Act 2009, the objects of which relate to property development, not the compulsory acquisition of land by the State.
- The objects of the Land Sales Act, specified in s 2, are:
“(a)to facilitate property development in Queensland; and
(b)to protect the interests of consumers in relation to property development; and
(c)to ensure that proposed allotments and proposed lots are clearly identified; and
(d)to achieve the objects mentioned in paragraphs (a) to (c) without imposing procedural obligations on local governments in addition to their obligations under the Planning Act.”
- Consistently, plan of survey no. 243229 exempted the plan from local government approval under schedules 19 and 26 of the Sustainable Planning Regulation 2009 (made under the Sustainable Planning Act). The combination of those schedules exempted, from compliance assessment, a subdivision plan for reconfiguring a lot in relation to “the acquisition…under the Acquisition Act, of land by a constructing authority, as defined under that Act…”. The Acquisition of Land Act defines “constructing authority” to mean “the State”. In this case the plan of survey named the registered owner of the resumed land as “The State of Queensland represented by Department of Transport and Main Roads as Constructing Authority”.
- The terms of s 9 of the Land Sales Act similarly, are those of property development, not resumption. I have earlier set out the relevant parts of that section, and now note the reference in s 9(1)(b) to a plan of survey “approved by the local government under the Planning Act”, the references in s 9(2)(a) to development permits and compliance permits, and in s 9(3)(d) to “conditions” specified in such permits, considerations alien to resumption situations.
- In the Second Reading Speech for the Land Sales Bill, the Attorney-General said “the purpose of this legislation is to place in an appropriate Act the law dealing with the sale of proposed subdivisions of land and proposed lots being either building units or group titles”. Compare Three Pty Ltd v Body Corporate for Savoir Faire Community Titles Scheme 3841 [2008] 2 Qd R 568, 583.
- The Acquisition of Land Act has its own regime prescribing the consequences of a resumption for issues of title (sections 12, 12A).
- It might, not unreasonably, be argued that had the legislature intended the Land Sales Act would not apply to a resumption situation; it could have expressly excluded resumption from the otherwise literal application of the requirements of sections 8 and 9. The provision for exemption in s 19 does not fulfil that category. But in my view the whole of the Act, and the central provision s 8 in particular, make it abundantly clear that the Land Sales Act has no application in a resumption situation, which falls to be regulated by the Acquisition of Land Act and the terms of the subject contract.
- I would order:
- that the appeal be allowed;
- that the declarations and orders made on 20 December 2011 be set aside;
- that the respondent pay the appellant’s costs of and incidental to the application and appeal, to be assessed on the standard basis.
- FRASER JA: I have had the advantage of reading in draft the reasons of the Chief Justice. I respectfully agree with those reasons, but I will add some brief reasons of my own. I gratefully adopt and will not repeat the Chief Justice’s exposition of the facts and relevant statutory provisions.
- The primary judge held that, as result of a resumption, the land the subject of the Put and Call Option Deed became “a single parcel of land…the boundaries of which are … to be shown, on a plan of survey that is to be registered under the Land Act 1994 or Land Title Act 1994”, within the meaning of the definition of “proposed allotment” in the Land Sales Act 1984. It is not in doubt that the land then fell within the literal meaning of the definition, but the appellant argued that the Land Sales Act was not aimed at the circumstances of this case. The second reading speech for the Bill for the Land Sales Act, the objects expressed in s 2, the operative provisions in ss 8 and 9 of that Act, and the different statutory scheme in the Acquisition of Land Act 1967, combine to make it clear that the legislative purpose did not extend to such a case. The Chief Justice has referred to the mischief which was the target of the Land Sales Act, concerning the sale of land the boundaries of which are to be defined by a future subdivision. The statutory purpose was plainly not to regulate the sale of a single parcel of land, part of which is compulsorily resumed. There is not the slightest hint in the Land Sales Act that its strong hand was intended to reach into that field, which was already regulated by the Acquisition of Land Act 1967 and governed by standard contractual provisions.
- The real issue arises from the circumstance that the appellant’s argument treats the definition of “proposed allotment”, as that term is used in ss 8 and 9 of that Act, as though it were qualified by an exception for the case where the registration of a new plan of survey is required only as a consequence of part of a single allotment being compulsorily resumed under the Acquisition of Land Act. That requires a notional reading in of additional words to produce a substantial departure from the literal meaning. In Wentworth Securities Ltd v Jones,[2] Lord Diplock identified three conditions which must be satisfied before such a construction is open; it must be possible to determine from the provisions of the Act in issue the precise mischief that Act was to remedy, it must be clear that an eventuality required to be dealt with if the Act’s purpose is to be achieved was overlooked by Parliament, and it must be possible to state with certainty the additional words Parliament would have approved if attention had been drawn to the omission. I see no particular difficulty in any of those matters. I have already referred to the relevant characteristic of the mischief which the Land Sales Act was enacted to control. The oversight was that the generality of the definition encompasses cases of the present kind, which were plainly not within the legislative purpose divined from the statute itself and the extrinsic material. If that oversight had been detected, it would surely have been cured by qualifying the definition by the exception I have articulated.
- Ultimately, the issue is whether the result required by the appellant’s argument amounts to legislation, which is not open to a court. A court must construe the statutory language itself.[3] Thus it has repeatedly been held that the statutory words must themselves be reasonably open to the propounded construction.[4] Is the definition of “proposed allotment”, as used in ss 8 and 9, open to being construed as though it were qualified by an exception for a case in which the registration of a new plan of survey is required only because part of a single allotment the subject matter of a contract of sale has been resumed under the Acquisition of Land Act? A negative answer to that question is not required merely because the appellant’s construction makes the definition wear a very different appearance from its apparently plain words.[5] In a case of this kind, where the literal meaning of the provision departs from the statutory purpose in a way which produces a wholly unreasonable result, a purposive construction may be adopted unless the statutory words are “absolutely incapable” of bearing that construction in their context.[6]
- Since what is in issue is the meaning of a defined term, it is also relevant to bear in mind that that s 32A of the Acts Interpretation Act 1954 (Qld) provides that definitions in an Act apply “…except so far as the context or subject matter otherwise indicates or requires.” The Court has previously emphasised that this suggests a flexible approach; it requires regard to be had, not only to context, but also to the subject matter of the provision in which the defined term is used, and it contemplates that application of the definition may be affected not only where it is required by the context, but also where the context or subject matter merely “otherwise indicates”.[7]
- Importantly, this is not a case in which the generality of the literal meaning of the definition is merely discordant with statements in the extrinsic material.[8] As appears from the Chief Justice’s reasons, the apparent generality of the definition is not reconcilable with the objects expressed in the Act and the very sections in which the defined term is used. For that reason, the statutory text itself, read as a whole, may properly be regarded as being ambiguous. It is not “absolutely incapable” of bearing the purposive construction which is the result of the appellant’s argument. It follows that there is no impediment to the Court obeying the command in s 14A of the Acts Interpretation Act to prefer the interpretation which will best achieve the legislative purpose.
- I agree with the orders proposed by the Chief Justice.
- MULLINS J: I agree with the Chief Justice.
Footnotes
[1] See the Land Act 1994, section 351 (Minister’s approval required for subdivision).
[2][1980] AC 74 at 105.
[3]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321.
[4]See R v Young (1999) 46 NSWLR 681, 686-688 per Spigelman CJ and see also, for example, Ravenscroft v Nominal Defendant [2008] 2 Qd R 32, 49 [44], Witheyman v Simpson [2011] 1 Qd R 170, 190 [49], Sevmere Pty Ltd v Cairns Regional Council [2010] 2 Qd R 276 at [53]-[62], [71], and Smith v Ash [2011] 2 Qd R 175 at 185 [36].
[5] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, per Brennan CJ, Dawson, Toohey and Gummow JJ.
[6] Luke v Inland Revenue Commissioners [1963] AC 557 at 577, quoted in MacAlister v The Queen (1990) 169 CLR 324 at 330.
[7] See Conde v Gilfoyle & Anor [2010] QCA 109 at [20].
[8] Cf Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 517–518; Newcastle City Council v GIO General Ltd (t/as GIO Australia) (1997) 191 CLR 85 at 113; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47.