Jaid Pty Ltd v Beach Administration Pty Ltd
[2009] QDC 3
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- Unreported Judgment
- Jaid Pty Ltd v Beach Administration Pty Ltd[2009] QDC 3
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Jaid Pty Ltd v Beach Administration Pty Ltd[2009] QDC 3
Jaid Pty Ltd v Beach Administration Pty Ltd[2009] QDC 3
DISTRICT COURT OF QUEENSLAND
CITATION: | Jaid Pty Ltd v Beach Administration Pty Ltd [2009] QDC 3 |
PARTIES: | JAID PTY LTD Plaintiff AND BEACH ADMINISTRATION PTY LTD Defendant |
FILE NOS: | 232/08 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Maroochydore |
DELIVERED ON: | 16.01.2009 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 12.12.2008 |
JUDGE: | Judge J.M. Robertson |
ORDER: | Application dismissed |
CATCHWORDS: | Contract: whether land subject of a Put and Call Agreement was “residential property” as defined in s 17 of the Property Agents and Motor Dealers Act 2000 (Qld); Summary judgment: application by defendant, whether evidence presented on summary hearing sufficient to determine the central issue of fact. |
COUNSEL: | S Blaxland for the plaintiff/respondent J Lee for the defendant/applicant |
SOLICITORS: | Easton Lawyers for the plaintiff/respondent Gardiners Lawyers for the defendant/applicant |
Introduction
- [1]The plaintiff Jaid Pty Ltd. (Jaid) is the owner of a property at 154 Balmoral Road Montville (“the land”). In May 2008, Jaid granted an option to purchase the land to the defendant Beach Administration Pty Ltd. (the defendant). An option fee of $10,000 was paid by the defendant to Jaid. The option to purchase was contained in a Put and Call Agreement entered into between the parties. If the defendant exercised its option it was in terms of an REIQ contract annexed to the Put and Call Agreement. The agreement also contained an option to Jaid to sell the property to the defendant, however Jaid’s right to exercise its option did not arise until the defendant had not validly exercised its option.
- [2]For present purposes it can be accepted that the defendant did not exercise its option and that Jaid then purported to exercise its option to sell and called upon the defendant to execute a contract and pay a deposit of $100,000.
- [3]By letter dated 18th July 2008 the defendant purported to terminate the agreement.
- [4]Jaid commenced proceedings in this court by claim filed 17th September 2008 seeking (inter alia) damages of $100,000 (being the deposit payable) and a declaration that it was entitled to retain the $10,000 option fee.
- [5]The defendant in its amended defence and counter claim filed 3rd November 2008, pleads that the Put and Call Agreement is a “relevant contract” for the purposes of Chapter 11 of the Property Agents and Motor Dealers Act 2000 (Qld) (“the PAMDA”) as defined in s.364 of that Act; and that as Jaid did not comply with the relevant sections of the Act dealing with the provision of warning statements, it was entitled to terminate the contract.
- [6]Jaid’s response in its amended reply and answer is to admit (in effect) partial non-compliance with the warning notice sections but to assert that the PAMDA has no application to this agreement as the land the subject of the Agreement “is not residential land but is a bare block of land not characterised or zoned as residential”.
- [7]The defendant has applied to the Court for summary judgment pursuant to r 293(1) UCPR. R 293(2) is in these terms:
“(2)If the court is satisfied—
(a)the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and
(b)there is no need for a trial of the claim or the part of the claim;
the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”
- [8]It is common ground that the test to be applied is the same as the test applicable to applications for summary judgment by plaintiff pursuant to r 292 UCPR as interpreted by various members of the Court of Appeal in Deputy Commissioner of Taxation v Saledo [2005] 2 Qd R 232.
The Issues
- [9]The central issue is therefore, is the land residential land, therefore invoking the provision of the PAMDA. If it is, then Jaid accepts that it has not complied with the Act.
- [10]Jaid also argues on the summary judgement application that even if the PAMDA applies, the defendant has by its conduct waived its rights under the Act or elected (prior to the commencement of the court proceedings) not to pursue them.
Discussion
- [11]Chapter 11 of the PAMDA is concerned with residential property sales. “Residential property” is defined (relevantly) in s 17 as
“(1)….
(b)a single parcel of vacant land in a residential area.
….
(3)….the following property is not residential property—
(a)a single parcel of land on which a place of residence is constructed or being constructed if the property is used substantially for the purposes of industry, commerce or primary production;
(b)a single parcel of vacant land, if the property—
(i)is in a non-residential area; or
(ii)is in a residential area, but only if a local government has approved development in relation to the property, the development is other than for residential purposes and the approval is current; or
(iii)is used substantially for the purposes of industry, commerce or primary production.
- [12]S 17(4) provides relevant definitions:
residential area means an area identified on a map in a planning scheme as an area for residential purposes.
residential purposes includes rural residential purposes and future residential purposes.
Vacant land means land on which there are no structural improvements, other than fencing.
- [13]In support of its application the defendant relies on the affidavit of its solicitor Andrew Ellison. He has conducted a search of records of the relevant local authority the Sunshine Coast Regional Council. There is no dispute that the land is located within the Blackall Range Planning Area which is Planning Area 19 and in Precinct 1, the Lake Baroon Catchment Area. The Precinct Class is Water Resource Catchment Area/Sustainable Rural Residential and in the Strategic Plan it is in a permissible area for Rural Residential/Water Supply Catchment/Rural or Valued Habitat/Agricultural Protection. The land is also within a Special Management Area as being land within a Landslip Hazard Area.
- [14]No doubt with the definition of “residential area” in mind, Mr. Ellison conducted a personal search of Council’s offices and obtained a copy of the relevant planning scheme map. Unfortunately, the land itself has not been designated as an overlay on the map and the map therefore does not add to the details already disclosed in the Council search.
- [15]Jaid seeks to rely on affidavits of a surveyor Mr. Kenny and a town planner Mr. Kinsella both delivered late on the afternoon of the 11th December i.e. the day before the hearing. Mr Lee objects to these affidavits being considered by me, not on the ground of the late delivery but on the ground of the relevancy. He submits (correctly in my view) that whether or not the land is “residential property” is a question of fact; however I do not agree that the question is to be determined simply by referring to the definition of “residential area” in s 17(4) of the PAMDA in isolation. Clearly both Mr. Kenny and Mr Kinsella would qualify as experts and their evidence may assist the Court in determining the central issue in the case.
- [16]It is clear to me that on the evidence presented by the defendant there may be some part of the land that could be used for rural residential purposes, but at this stage on the evidence, I am simply unable to conclude that the land is residential property for the purposes of the PAMDA.
- [17]Mr Lee in his written outline helpfully analysed some of the cases in which a purchaser has purported to terminate a contract on the basis of the vendor’s failure to comply with the requirements of Chapter 11 of the PAMDA. In many of the cases, the debate did not focus on the issue here i.e. was the subject land “residential property” as defined in s 17 of the PAMDA. In one case he did not refer to, Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd (2008) QSC 261, Fryberg J was concerned whether land described in the relevant planning map as “Tourist and Residential” fell within the definition of “residential property” in s 17. In concluding that the land was not “residential property” within the definition, his Honour had regard to the dominant land uses both in the relevant Planning Area and the Precinct. As the evidence presently stands before me I am unable to conclude to the relevant standard what permissible uses could be made of the land or on part of it without further evidence, bearing in mind the overriding provision in the IPA whereby a planning scheme cannot itself prohibit particular uses of land.
- [18]The description of the land on the draft contract is not conclusive of the issue nor are the alleged statements made by the defendant as to its intended use of the land. In my opinion, it will be necessary for that question to be determined at a trial after a consideration of all relevant evidence including expert evidence. It follows that the defendant has not satisfied me that Jaid has no real prospect of succeeding or that there is no need for a trial, and the defendant’s application is dismissed. I will hear the parties as to the costs and the conduct of the future trial of the claim.