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Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd[2008] QSC 261

Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd[2008] QSC 261

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd  [2008] QSC 261

PARTIES:

HEDLEY COMMERCIAL PROPERTY SERVICES PTY LTD

ACN  124 637 449

(applicant)

v

BRCP OASIS LAND PTY LTD

ACN 124 801 958

(respondent)

FILE NO:

SC No 5607 of 2008

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

29 October 2008

DELIVERED AT:

Brisbane 

HEARING DATES:

31 July and 1 August 2008

JUDGE:

Fryberg J

ORDER:

Declare that the land being lot 203 on SP210231, County of Nares, Parish of Cairns is not “residential property” within the meaning of s 17 of the Property Agents and Motor Dealers Act 2000 (Qld).

CATCHWORDS:

Conveyancing – Statutory obligations or restrictions relating to contract for sale – Protection of purchasers – Other matters – “Relevant contract” being contract for sale of residential property – Objective determination of the purposes of development – Purpose was for other than residential purpose – Deed did not embody a contract for sale of residential property

Conveyancing – Statutory obligations or restrictions relating to contract for sale – Protection of purchasers – Obligations on vendor: disclosure, warnings and like matters – Statutory requirement to include “a clear statement directing buyer’s attention to warning statement and proposed relevant contract” – Existence of binding contract – s 365 is new and distinct requirement from s 366A and must be satisfied before parties are bound however difficulties arise from interpretation of section – Buyer directed attention to contract but failed to refer to warning statement

Conveyancing – Statutory obligations or restrictions relating to contract for sale – Protection of purchasers – Other matters – Buyer consented to application for exemption from obligations and restrictions under Land Sales Act 1984 – Action not inconsistent with continued existence of right to withdraw offer to purchase

Integrated Planning Act 1997 s 3.2.1, s 3.2.4, s 3.5.11, s 3.5.16, s 3.5.17, s 3.5.19, s 3.5.28, s 5.1.27, Schedule 8

Property Agents and Motor Dealers Act 2000 (Qld) s 17, Chapter 11, Schedule 2

Bartlett v Brisbane City Council [2002] QPEC 043 cited

Bhat v Brisbane City Council [2002] QPEC 044 cited

Blackman v Milne [2007] 1 Qd R 198; [2006] QSC 350 cited

Grieve v Enge [2006] QSC 037 cited

Juniper v Roberts [2007] QSC 379 cited

MNM Developments v Gerrard [2005] 2 Qd R 515; [2005] QCA 230 discussed

Pearson v Thuringowa City Council [2006] 1 Qd R 416; [2005] QCA 310 followed

Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 cited

Rathera Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476; [2000] QCA 506 cited

COUNSEL:

Applicant: D Fraser QC and P Telford

Respondent: P Morrison QC and G Handran

SOLICITORS:

Applicant: Williams Graham Carman

Respondent: Hickey Lawyers

 

  1. FRYBERG J:  In early October 2007 the parties entered into a Call and Put Option Deed for the sale by the respondent (“BRCP”) to the applicant (“Hedley”) of a parcel of land in central Cairns.  The area of the land was 4,000m2 and it was suitable for high-rise development.  Neither party is a consumer in the trendy sense of the word; Hedley is a developer and the deed embodied a commercial contract.  (I reject Hedley's submission that it was a consumer because it was consuming land.)  Both parties were represented by experienced solicitors at all material times.  Before the time for exercising its option expired Hedley decided that it wanted to get out of the deal.  On 1 April 2008 its solicitors wrote to those for BRCP purporting to do just that.  They claimed that Hedley was entitled to act in this way by the Property Agents and Motor Dealers Act 2000 (“PAMDA”).  BRCP denied that Hedley could escape the deed and when, in due course, the time to exercise its option arose, it purported to do so; its notice of exercise was dated 21 July 2008.
  1. The present application is designed to resolve whether the parties were and are bound by the deed and the purported contract arising from the exercise of the option. Because the issues are quite technical, it is desirable to set out the precise relief sought by a Hedley:

“1.A declaration that the property, being the parcel of land comprising proposed lot 203, County of Nares Parish of Cairns, resulting from a proposed reconfiguration of current lot 788 on CP C1983 Title reference 1880741 and lot 21 on CP C198136 title reference 18805246, and being the property described as the ‘lot’ in a Put and Call Deed dated 1 October 2007 made between the Applicant and the Respondent (the ‘contract’) is residential property as described in s 17 of the Property Agents and Motor Dealers Act (Qld) 2000 (the ‘Act’).

  1. A declaration that, in the event that the Applicant and Respondent are bound by the contract, the Applicant has the right to terminate the contract pursuant to s. 367(2) of the Act.
  1. Further, or alternatively, a declaration that, the Applicant had or in the alternative has the right pursuant to s. 365(3) of the Act to withdraw any offer made by it to be bound by the contract.

3A.Further, or alternatively, a declaration that in the events that have occurred, the Applicant is not bound by the contract.”

It will be noted that relief is sought only in respect of the Put and Call deed.  It is that document which is defined as “the contract”.

  1. The provisions relied upon by Hedley appear in ch 11 of PAMDA.  All of them use the term “relevant contract”; if the deed is not within the meaning of that term, the application must fail.  If it is, questions arise as to whether BRCP complied with ch 11 and if not whether Hedley has waived its rights.

Was the deed a “relevant contract”?

  1. The term “relevant contract” is defined to mean “a contract for the sale of residential property in Queensland, other than a contract formed on a sale by auction”.[1]  The deed was not a contract formed on a sale by auction and it was common ground that it was a contract “for” the sale of land in Queensland.[2]  The question in issue between the parties concerned whether the land in question was “residential property” within the meaning of PAMDA:

“17Meaning of residential property

(1)Property is residential property if the property is—

(a)a single parcel of land on which a place of residence is constructed or being constructed; or

(b)a single parcel of vacant land in a residential area.

(2)Without limiting subsection (1), property is residential property if the property is any of the following lots that is a place of residence or in a residential area—

(a)a lot included in a community titles scheme, or proposed to be included in a community titles scheme, under the Body Corporate and Community Management Act 1997;

(b)a lot or proposed lot under the Building Units and Group Titles Act 1980;

(c)… .

(3)Despite subsections (1) and (2), 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.

(4)In this section—

development see the Integrated Planning Act 1997, section 1.3.2.

non-residential area means an area other than a residential area.

planning scheme see the Integrated Planning Act 1997, section 2.1.1.

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.”

I have emphasised the provisions relied upon by one side or the other in the present case.

The land sold

  1. The land the subject of the deed (“lot 203”) forms part of a 5 acre (about 2ha) city block in Cairns bounded by Abbott Street, Aplin Street, Lake Street and Florence Street. Until 2 July 2008 the block comprised two allotments: lot 788, the former school reserve, which occupied 95% of the block; and lot 21, the balance, which was at the western corner. BRCP now owns the entire block; it became the registered proprietor on 4 July 2007. In the centre of the block is constructed the Oasis Resort, a tall building containing 322 accommodation units constructed at some time after 1996 (“the Oasis development”). It and its associated uses occupy about 60% of the block. In March 2004 a potential purchaser from the then owner successfully applied for Council approval of the reconfiguration of the block into three lots, as shown in the following diagram:

Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2008] QSC 261

Before the reconfiguration took place, negotiations with the Council resulted in agreement regarding fresh contributions conditions and a replacement approval was issued on 24 August 2007.  The reconfiguration became embodied in a plan registered on 2 July 2008.

  1. The land sold was lot 203 on that plan.
  1. The first question is whether that lot answers the description in s 17(1)(b).  It is common ground that there are no structural improvements on it.  Although the plan of subdivision remained unregistered at all material times, the respondent does not suggest that lot 203 was not a parcel within the meaning of the subsection.[3]  The issue is whether the land is in a “residential area” as defined in s 17(4).

Residential area

  1. It is common ground that the land is in “an area identified on a map in a planning scheme”. The planning scheme in question is that of Cairns and the map in question is that entitled “CBD-North Cairns District Plan”.[4]  The map depicts one of the 12 districts into which the city is divided for the purposes of the scheme.  On that map the land is coloured brown.  A legend indicates that this represents “Tourist and Residential”.  I reproduce the map with the city block containing the land outlined in red:

 

 

 

Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2008] QSC 261Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2008] QSC 261Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2008] QSC 261

 
  1. On behalf of BRCP, Mr Morrison SC submitted that “identified … as an area for residential purposes” means “identified … for residential purposes only”, not “identified … for residential or for residential or other purposes”. He submitted that under the planning scheme the relevant area permitted use for business and commercial purposes. These were different purposes from residential purposes. He referred to the definition of residential purposes, observing that the inclusions were confined to residential uses and none other. He did not submit that tourist purposes, for which land in the area undoubtedly can be used, were different from residential purposes; it is therefore unnecessary for me to refer to the submissions advanced by Mr Fraser QC on behalf of Hedley to rebut such an argument.
  1. I accept that it is legitimate to refer to the planning scheme to identify what is meant by the words “Tourist and Residential” in the legend on the map. The scheme provides for the division of the city into 19 planning areas. These areas are not contiguous but are more akin to what used to be known as zones. The legend lists such of these areas as occur in the relevant district map. Tourist and Residential is one of the planning areas. Others are called Residential 1, Residential 2 and Residential 3 and Low Density Residential. There is also a Commercial area. The scheme states that these areas “identify areas of similar or compatible land use and identify the dominant land use preferred in each planning area”.
  1. Consistently with the Integrated Planning Act 1997 (“IPA”) the scheme does not prohibit any uses in any areas.  It specifies various types of assessment which are to be used for different uses, including eight defined business and commercial uses, differentially among the various planning areas, including all of the residential areas.  In other words, business and commercial purposes can occur in any area, but may be scrutinised more closely in some areas than in others.  If BRCP's submission were correct, PAMDA could have no application to any part of the city.  That is an unlikely conclusion.
  1. In my judgment it is clear from the plan that the Tourist and Residential planning area is intended to have two preferred dominant land uses: residential use and tourist use. These are not intended to be exclusive uses. It is sufficient for the purposes of the application of the defined term “residential area” in this part of Cairns to identify “residential purposes” as referring to either of the two preferred dominant land uses.[5]
  1. In the alternative, or perhaps in addition, Mr Morrison submitted that the objects of ch 11 of PAMDA were to be protected by directing attention to the particular use being made of the land in question at the relevant time or, where findings could be made, what the land was being purchased for.  He submitted that in the present case that was not for residential use.  He submitted that the alternative was to permit commercial developers such as the applicant to avail themselves of consumer protection provisions to avoid contracts with substantial settlement periods, when the real purpose of the provisions was to give purchasers of residential dwellings a short cooling off period.
  1. In response, Mr Fraser submitted that consideration of the legislative history of PAMDA demonstrated that the Parliament had quite deliberately chosen to prevent the avoidance of the consumer protection measures in PAMDA by applying them to all sales of residential land except sales by auction.  That submission is well founded.

Legislative history of chapter 11

  1. As originally enacted[6] that chapter had two purposes:

“363 Purposes of ch 11

The purposes of this chapter are—

(a)to give persons who enter into relevant contracts a cooling-off period; and

(b)to require all contracts for the sale of residential property in Queensland to include consumer protection information, including a statement about whether or not the contract is subject to a cooling-off period.”

The subsequent provisions of the chapter gave effect to those purposes.  Under them, in short, everyone who entered into a contract for the sale of residential property had to be given a warning about whether or not the contract had a cooling off period.[7]  Non-compliance conferred upon the buyer a right of termination at any time before the contract settled.[8]  Such a period was given only to persons who entered into relevant contracts[9]; a relevant contract was “a contract to buy residential property in Queensland that arises out of an unsolicited invitation to attend a property information session”.[10]  The cooling off period began when the buyer became bound under the contract[11], which occurred when the buyer gave the seller a copy of the contract signed by both parties and the notice signed by the seller declaring the date on which the seller sign the contract.[12]

  1. PAMDA came into effect on 1 July 2001.  Within three months the relevant Minister introduced a number of amendments to ch 11 because, as she put it in her second reading speech, “unethical property marketeers engaging in two-tiered marketing have worked around attempts to clean up the industry”.[13]  The amending legislation replaced s 363(b) with the following:

“(b)to require all relevant contracts for the sale of residential property in Queensland to include consumer protection information, including a statement that the contract is subject to a cooling-off period”.

“Relevant contract” was redefined to mean “a contract for the sale of residential property in Queensland, other than a contract formed on a sale by auction”, thus bringing all such contracts within the provision giving the cooling off period.

  1. Both the explanatory notes for the amending bill and the Minister's second reading speech make it clear (if it be thought that there is any ambiguity in the wording of the relevant sections) that the intention was to require a cooling off period for all contracts for the sale of residential property in Queensland (except auction sales) and to require the warning statements to be included on all such contracts. There was no intention to limit the operation of the provisions to contracts to which a consumer was a party.
  1. I accept Hedley's submission that permitting commercial developers such as the applicant to take advantage of the provisions of the Act was an intentional, not an inadvertent, consequence of the drafting. There is no reason to interpret the definition of “residential area” to avoid such a consequence.
  1. It follows that in my judgment lot 203 was within a “residential area” as defined in s 17(4).  From that it follows that the first question referred to above must be answered in Hedley's favour unless the property can be brought under one of the exceptions in s 17(3).  The only exception which BRCP submits has application is that contained in s 17(3)(b)(ii).

Current development approvals for other purposes

  1. Three conditions must exist for that submission to succeed:
  • the Cairns City Council must have approved development in relation to lot 203;
  • that development must have been other than for residential purposes;
  • the approval must be current.

BRCP relied on two approvals which it submitted satisfied those conditions.  The first was that embodied in town planning consent permit number 4188/95 issued by the Council on 11 March 1996, approving the Oasis development.  The second was that embodied in a negotiated decision notice for development application 8/13/767 issued by the Council on 24 August 2007.

The Oasis development: “approved development in relation to the property”?

  1. Two matters are in issue between the parties in connection with the first approval. The first is whether the development was “in relation to” lot 203. I express the issue that way because in my judgment the phrase “in relation to the property” qualifies “development”, not “approved”. In late 1995 a company called Metro Holdings Ltd applied to the Council for consent to use land the subject of that application for “tall building to contain accommodation units (high density) and ancillary facilities”. The land in respect of which the application was made was described as “lot 788 on plan C1983 and the lot 21 on plan C19813C”; in other words, the whole of the city block. That block was wholly shaded on the map which accompanied the application. At the time the land was zoned “B1 Main Business and Shopping” under the (pre-IPA) planning scheme then in force.  The proposed use was described in detail in a planning report which also accompanied the application.  In the introduction to that report, it was said, “This application relates to the former Cairns Central School site bounded by Lake, Florence, Abbott and Aplin Streets.”  Accompanying plans depicted an “Accommodation Units (High-Density) Development configured in a resort style hotel”.  The proposal was described in section 3.0 of the report, which commenced, “The development subject of this application only relates to part of the site, centrally located between Florence and Aplin Streets”.  That part was the land depicted as lot 202 on the plan above.[14]  It was that area which was used in the report for the purpose of demonstrating compliance with the criteria in the relevant development control plan with respect to height and the impact of buildings; but the area of the city block was used for the purpose of demonstrating compliance with the plan relating to residential densities.
  1. The application was approved by the Council on 29 January 1996. Thereafter the applicant sought a modification of the approval and on 26 February 1996 the Council resolved to amend the conditions of approval. An amended town planning consent permit was issued on 11 March 1996. The property described in that permit was “Part of lot 788 on plan C1983, parish of Cairns”, but somewhat inconsistently, the area of the land was stated to be 20,234m2, which was the area of the whole city block.  The use consented to was “Tall building comprising of 322 accommodation units and ancillary uses”.  The building was in due course constructed and afterwards commenced business as the Oasis Resort.  I shall refer to some of the conditions below.
  1. In Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council, Stephen J wrote:

“In any [customary Australian scheme of town planning] the two critical integers, land and use, each involves a question of definition, what land and what use? The intending user of land will, in his application for consent, have to specify these two integers but it will be one of them, the integer of use, that will dictate the precise identity and extent of the other integer, the land the subject of the application. This is a necessary consequence of the fact that the consent being sought is consent to use for a particular purpose. The land is merely the passive object which is being used; the active integer, use, will determine its extent.”[15]

Hedley submitted that this passage supported its submission that the 1996 approval was given in relation to the Oasis development, not in relation to the whole of the city block.  It accepted that the “land, the subject of the application” within the meaning of s 3.2.1(3) of IPA was the whole block[16], but submitted that this was to be distinguished from the land in relation to which the development had been approved.

  1. Relying on s 3.5.28 of IPA, BRCP submitted that an approval attaches to “the land of the subject of the application” and binds its owners and their successors in title, and continues to do so even after reconfiguration.[17]  “The land the subject of the application” must be identified in the application[18] and the required description of the land is “the whole of the parcel of the land on which the proposed development is to occur and not the various parts of the parcel which the development and the ancillary services are likely to affect”.[19]  It followed that the approval attached to the land of the subject of the deed (lot 203) and the approved development was therefore development “in relation to the property” within the meaning of s 17(3)(b)(ii) of PAMDA.
  1. Moreover, it was submitted, the permit which was actually issued was not limited in its impact to the Oasis development. Condition 6 of the permit required 140 car parking spaces be provided, 30 of which were required to be on the remainder of the site. These 30 were required to be incorporated into any further development of the total site. This meant that lot 203 remained potentially liable to provide car parking for the resort. Further, condition 17 required planting of trees and shrubs and condition 18 the provision of fencing to boundaries to the satisfaction of the Director of Planning and Development; condition 14 required a landscaping plan to be prepared with a number of obligations attaching to its and condition 15 required pruning of existing vegetation; condition 16 required areas to be landscaped to be maintained at all times to the satisfaction of the Director of Planning and Development; and condition 28 required the construction of paved footpaths in accordance with the landscape plan. All of these conditions, it was submitted, ran with the whole of the block, including lot 203. The development related to that property, so PAMDA was engaged.
  1. In my judgment BRCP's submissions on this issue must be rejected. It is true that the legislature has made some attempt to reconcile IPA and PAMDA.  “Development” and “planning scheme” in PAMDA are defined by reference to IPA.[20]  Before PAMDA came into operation s 17 was amended “to allow the Act to more accurately align with”[21] IPA.  They are nonetheless different Acts, with different objects.  The words “approved development in relation to the property” are used in and for the purposes of the definition of “residential property” in PAMDA.  There is no definition of “residential property” in IPA.  No pragmatic reason was cited to me for construing those words as inevitably including in the relationship all land the subject of a development application under IPA.  As a matter of construction the words relate to the development, not to the application for approval.[22]  Moreover since the decision in Rathera, IPA has been materially amended.  What was then s 3.2.1(3)(a)(i) has become s 3.2.1(2)(a), and the requirement for the approved form to contain “an accurate description of the land, the subject of the application” has been replaced with a requirement that it contain “an accurate description of the land”.  No submissions were made to me regarding that amendment and I refrain from drawing any conclusions from it; but it cannot be ignored.
  1. It is also important to identify the precise ratio decidendi of Rathera.  In that case the land the subject of the application in the form under s 3.2.1 of IPA was described using the real property description of the whole allotment.  The development affected only part of the allotment.  It was held that the reference to the whole allotment did not contravene s 3.2.1 and did not invalidate the application.  It was unnecessary in that case to decide whether there would have been a contravention of that section had the description referred only to the relevant part of the allotment.  The court reasoned that the purpose of requiring an accurate description of the land was to identify the landowner who must give written consent to the proposal, the land on which the public notice was to be erected and adjoining landowners, and the land to which the approval and any conditions would attach.[23]  All of those purposes would be fulfilled by a description of the land as “part of” the allotment.[24]  The words relied on by BRCP[25] were therefore obiter, and were wider than the reasoning in the decision required.
  1. Whether the Council has “approved development in relation to the property” is in my judgment to be determined as a question of fact. BRCP attempted to do this by referring to the application and the conditions which, it submitted, affected or potentially affected lot 203. The various references in the application to the totality of the land can be seen upon examination to provide only the most tenuous connection between lot 203 and the development. The conditions are also insufficient to establish the necessary relationship. There was no direct evidence of what was done to comply with condition 6 relating to car parking, but the plan attached to the 2007 reconfiguration approval shows an area on the proposed lot 201 abutting the Oasis development marked “proposed easement over existing car park in favour of lot 202”.[26]  That area became easement A when the plan was registered.[27]  I infer that it is the area containing the 30 car parks required by condition 6.  As to the other conditions referred to by BRCP, there is no evidence that any of them has any actual effect on lot 203.  The landscaping plan has not been put into evidence nor has there been evidence of any requirements of the Director of Planning and Development.  I have no doubt that if any such evidence existed it would have been put before me.  I find as a matter of fact that none of the conditions in the Oasis development approval had any effect on lot 203.
  1. The only connection between that lot and the approval is a legal one: under s 3.5.28 of IPA, the approval is by law attached to the lot.  In my judgment that is insufficient to engage the expression “in relation to the property” in s 17(3)(b)(ii) of PAMDA.

The Oasis development: “development other than for residential purposes”?

  1. The second issue arising in relation to the Oasis development is whether that development was other than for residential purposes. No direct evidence of how the Oasis Resort operates was placed before me. I have referred above to part of the description submitted with the application for approval. The planning report stated:

“A low to medium rise accommodation unit development is proposed, which as the plans indicate is configured in a resort style. …  [The principal] building contains both the front and back-of-house facilities and some of the accommodation units.  Two separate stand alone accommodation unit buildings are located on the Abbott Street alignment.

Access for drop-off facilities and for car parking proposed [sic] solely off Lake Street.  A basement car park at semi-basement level is proposed containing 110 spaces and some of the back-of-house facilities including staff dining, general storage and laundry. …

The large porte-cochere opposite the main lobby is of sufficient height and dimensions to cater for the larger tour buses which are common throughout the Cairns region.

…

The resort style configurations of the development puts the proposed development apart from all similar sized CBD-based hotels existing within the Central Business District.”

  1. PAMDA does not defined “residential purposes” as such, although it includes rural residential purposes and future residential purposes within the expression.  Nor is the expression defined in IPA, although it is used in that act.  It is also used in the Standard Building Regulation 1993, but again without definition.  Its meaning in that regulation fell for consideration in Pearson v Thuringowa City Council, where Keane JA (with whom McPherson JA and Dutney J agreed) wrote:

“[11] The phrase ‘residential purposes’ is not defined in the Standard Building Regulation 1993 (Qld) so it is necessary to arrive at an appropriate definition by recourse to authority and by reasoning from first principles.  In terms of relevant authority, the Full Court of the Federal Court recently had the opportunity to consider the meaning of ‘residential premises’ for the purposes of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (‘the GST Act’) in Marana Holdings Pty Ltd & Anor v Commissioner of Taxation.  The definition of that phrase provided by s 95-1 of the GST Act depended upon the meaning of the term ‘residence’.  After conducting an extensive review of the dictionary definitions of words such as ‘residence’, ‘reside’ and ‘residential’, as well as examining previous authority dealing with the meaning of phrases such as ‘residential accommodation’, the Full Court concluded that such terms usually connote ‘a degree of permanent or long-term commitment to the occupation of the premises in question’.  I would respectfully agree with that conclusion.”[28]

In my judgment a similar approach is appropriate in dealing with the expression in PAMDA.

  1. The evidence regarding the nature of the (then-proposed) Oasis Resort suggests that most if not all of those using the accommodation units would be transient occupants - in all probability, tourists. I am satisfied by that evidence that the development was “other than for residential purposes”.
  1. However having regard to my earlier conclusion[29], I find that lot 203 was not excluded from the definition of “residential property” by the operation of s 17(3)(b)(ii) of PAMDA in relation to the Oasis development.

The reconfiguration development

  1. “Development” in s 17(3)(b)(ii) of PAMDA takes its meaning from s 1.3.2 of IPA.  It includes reconfiguring a lot.  It was common ground that that was what Smart Property (Aust) Pty Ltd sought to do by a development application lodged with the consent of the then owner (a Singaporean company) of lot 788 and lot 21 in March 2004.  There is no suggestion that either of the parties before me was associated with that application; the then-applicant was in the process of purchasing the land from the then-owner.  I have already described the reconfiguration briefly.[30]  A covering letter with the application invited the Council to note that the proposal did not change the currently approved use, Holiday Apartments (High-Density).  Item 14 in the report specified that the number of additional residential lots proposed was one.
  1. The application was approved subject to conditions and a development permit was issued in April 2004. The conditions included contribution requirements, the creation of an easement over the proposed lot 201 to allow access to the car park, performance of certain local external roadworks, carrying out engineering works to relocate water supply and sewerage services, establishing lawful points of discharge of drainage and a condition requiring floor levels to be 300mm above a flood level. I infer that the works were not carried out during the next three years.
  1. At some time before August 2007 Smart Property (Aust) Pty Ltd requested a negotiated decision for its development application.  In argument before me the parties seemed to assume that it was acting on behalf of BRCP, but I cannot find any evidence to support that assumption.  The request resulted in a negotiated decision notice dated 24 August 2007.  That notice is taken to be the development approval.[31]  How it came to pass that a negotiated decision notice was issued three years and four months after the original decision notice was not explained.  The power to issue a negotiated decision notice exists only during an applicant's appeal period.[32]  If that period was still alive in August 2007 the circumstances which gave rise to that state of affairs must have been extraordinary indeed.  Hedley did not challenge the validity of the notice, so I shall assume that it was properly issued - an assumption also warranted by the fact that the plan of subdivision has been registered.
  1. Under that notice the contribution conditions were varied to bring them into line with new provisions in and under IPA.  Some contributions were estimated to increase by relatively small amounts but the previous estimate of the “park contribution in lieu of land” of $345,000 became an estimate of about $34,700 for community purpose infrastructure.  No purpose was identified for the reconfiguration.
  1. It was common ground that that development was in relation to the property and that the approval was current at all material times. The issue between the parties was whether the development was “other than for residential purposes” within the meaning of s 17(3)(b)(ii) of PAMDA.
  1. Hedley submitted that in order to amount to such development, a particular development must be shown to be for something other than residential purposes. It submitted that, while a reconfiguration approval could be for residential purposes, in the present case the approval was non-specific as to the purpose; or was simply “to end up with three lots where there were two”. It submitted that the range of alternative purposes which might be relied upon could be identified from IPA (referring to ss 3.2.4(1)(b) and 5.1.27 and to schedule 8 table 2 box 6 of that Act), and (by implication) one could not go beyond the legal purpose of the reconfiguration.
  1. In February 2008 Hedley applied to the Council for development approval for a material change of use on (then proposed) lot 203, which it described as “commercial premises and multi-unit housing/holiday accommodation in a tall building”. The details of the material change of use were “vacant land to apartment complex (72 apartments) & restaurants”. The planning report accompanying the application stated that the requested approval was for the construction of a “tourist and residential apartment complex” contained in 72 three-bedroom units in two towers. Reception areas, a number of restaurant tenancies and car parking were also proposed. It is not possible from the documents to identify the likely proportions of long-term and short-term users.  Hedley submitted that this application was irrelevant to ascertaining the purpose of the reconfiguration: Hedley had not been involved in the reconfiguration.
  1. BRCP submitted that the 2007 development approval was clearly to facilitate the reconfiguration of land not being used for residential purposes. It further submitted that the land was subject to conditions that were not applicable to residential purposes.
  1. In my judgment the question whether a development is other than for residential purposes within the meaning of s 17(3)(b)(ii) of PAMDA must be resolved as a question of fact.  It must be resolved by looking to the purpose of the development at the time of the development approval; the development is the approved development and the approval is the focus of the paragraph.  It must be determined objectively; it is not the subjective purpose of the applicant or of the Council which governs the issue, although they may be relevant.
  1. I make the following findings:
  • The development proposed by Hedley was not solely for residential purposes.  In part it was for other purposes, namely tourist accommodation.
  • However that development is irrelevant in ascertaining whether the purpose of the reconfiguration was “other than for residential purposes”.  No party involved in the reconfiguration had anything to do with the proposed Hedley development.  BRCP led no evidence to suggest that the negotiated decision notice was obtained at the request or to satisfy the requirements of Hedley.
  • The reconfiguration was not for residential purposes.  Although the letter which accompanied the application for reconfiguration by Smart Property (Aust) Pty Ltd invited the Council to note that the proposal did not change the currently approved use (Holiday Apartments (High-Density)), that fact is neutral as to the purpose of the approval.  I accept Hedley's submission that the purpose of the approval was simply to end up with three lots where there were two.
  • IPA nowhere lists all of the purposes for which development may be carried out.  No reason has been shown for restricting those purposes to the small number of purposes referred to by IPA in quite specific contexts not relevant to the present case.
  • The purpose of ending up with three lots where previously there were two is other than a residential purpose.
  1. It does not follow from these findings that there can never be a reconfiguration for residential purposes. Under IPA local government assessment and approval processes for development are integrated.  An application may combine a request for approval of reconfiguration of land and a material change of use and in such cases it might not be difficult to infer the purpose of the reconfiguration if the application be approved.  However that was not the position in the present case.  Here, the purpose of the development the subject of the development approval constituted by the negotiated decision notice was “other than for residential purposes”.
  1. It follows that at and about the time of the deed the land in question was not “residential property” by reason of the operation of s 17(3) of PAMDA.  The deed did not embody a contract for the sale of “residential property” and was therefore not a “relevant contract” within the meaning of PAMDA.
  1. That is sufficient to dispose of the application, but in case it should go further I should set out my findings in relation to the other matters argued. The next matter was whether, assuming the deed was a relevant contract, BRCP complied with ch 11.  The last matter was whether Hedley had waived any rights which it might have acquired under s 365(3).  My conclusions on those matters are necessarily contingent on a different outcome on the matter already decided, but I shall in these reasons avoid the repeated use of the subjunctive mood in the interests of readability.

Compliance with chapter 11

  1. Hedley submitted that BRCP had not complied with ch 11 in two respects. First, when BRCP e-mailed a draft contract to Hedley for signature by it, it failed to include a clear statement directing Hedley's attention to the warning statement as required by s 366A(2)(a).  Consequently, if the contract had become binding, Hedley had a right of termination under s 367(2).  Second, Hedley had not received the contract in the way prescribed by s 365(2).  Consequently the contract had not become binding.  That ordering of the issues follows the chronology of events, and assists in explaining the proper construction of the sections.  I shall therefore adopt it, notwithstanding that as a matter of legal logic it would make sense to determine whether the contract had become binding before embarking on a consideration of the consequences of its doing so.  Those submissions require an examination of the dealings between the parties in greater detail than hitherto, but to focus that examination, I first set out the relevant operative provisions.
  1. At all material times, s 365 provided:

“365 When parties are bound under a relevant contract

(1)The buyer and the seller under a relevant contract are bound by the relevant contract when –

(a)for a relevant contract, other than a relevant contract relating to a unit sale - the buyer or the buyer's agent receives the warning statement and the relevant contract from the seller or the seller's agent in a way mentioned in subsection (2); …

(2)For a relevant contract, other than a relevant contract relating to a unit sale, the ways are--

(a)by fax …; and

(b)by electronic communication other than fax, if the electronic communication contains-

(i)a message that includes a clear statement directing the attention of the buyer or the buyer's agent to the warning statement and the relevant contract; and

(ii)a single document, consisting only of the warning statement and the relevant contract, that is protected against unauthorised change, with the warning statement appearing as the first or top page of the document; and

(c)by being handed or otherwise receiving the documents mentioned in paragraph (a)(ii) and (iii) other than by electronic communication, if--

(i)the warning statement is attached to the relevant contract and appears as the first or top page; and

(ii)the seller or the seller's agent directs the attention of the buyer or the buyer's agent to the warning statement and the relevant contract.

(3)Without limiting how the buyer may withdraw the offer to purchase made in the contract form, the buyer may withdraw the offer at any time before being bound by the relevant contract under subsection (1) by giving written notice of withdrawal, including notice by fax, to the seller or the seller's agent.

(4) … .

(5)If a dispute arises about when the buyer and the seller are bound by the relevant contract, the onus is on the seller to prove when the parties were bound by the relevant contract.”

  1. Section 366A relevantly provided:

“366A Warning statement if proposed relevant contract is given by electronic communication other than fax

(1)This section applies if a proposed relevant contract is given to a proposed buyer or the proposed buyer's agent by electronic communication, other than fax, for signing, whether or not the proposed relevant contract has been signed by the seller.

(2)If the proposed relevant contract does not relate to a unit sale, the seller or the seller's agent must ensure that the electronic communication contains--

(a)a message that includes a clear statement directing the proposed buyer's attention to the warning statement and the proposed relevant contract; and

(b)a single document, consisting only of the warning statement and the proposed relevant contract, that is protected against unauthorised change, with the warning statement appearing as the first or top page of the document.

(5)If subsection (2) or (3) is not complied with-

(a)if the seller gave the electronic communication - the seller; or

(b)if the seller's agent gave the electronic communication - the seller's agent;

commits an offence.

Maximum penalty--200 penalty units.

(6)It is a defence to a prosecution for an offence against subsection (5) for the seller or the seller's agent to prove that the seller or the seller's agent gave notice to the proposed buyer or the proposed buyer's agent under section 366C.”

  1. Section 367 relevantly provided:

“367 Buyer’s rights if a warning statement is not given or is not effective

(1)This section applies if—

(a)a warning statement requirement for a proposed relevant contract is not complied with and notice is not given under section 366C; or

(b)a warning statement is of no effect under section 366D(2), (3) or (4).

(2)The buyer under a relevant contract may terminate the relevant contract at any time before the relevant contract settles by giving signed, dated notice of termination to the seller or the seller’s agent.

(3)The notice of termination must state that the relevant contract is terminated under this section.”

The dealings between the parties

  1. As an aide memoir to understanding the course of dealings between the parties the following table assists the identification of the protagonists:

HEDLEY

APPLICANT - PURCHASER

CAIRNS 

BRCP

RESPONDENT - VENDOR

GOLD COAST

Tom Hedley

Jeanine Cooke

 

WILLIAMS GRAHAM CARMAN

CAIRNS COAST 

HICKEY LAWYERS

BUNDALL

Graham Dutton

Ranjit Singh

Simon Chan

Michelle Austin

 

CB RICHARD ELLIS (Real Estate)

 

Danny Betros

  1. On 1 August 2007 Mr Tom Hedley on behalf of Hedley wrote to Mr Danny Betros, BRCP’s real estate agent, stating that Hedley was prepared to enter into a contract to buy lot 203 for $8 million plus GST. Precisely what happened next is unclear, but on 28 August, four days after the Council issued its negotiated decision notice for the reconfiguration, Mr Simon Chan, BRCP's solicitor, telephoned Mr Graham Dutton, Hedley's solicitor, regarding that offer. They agreed that if the deal was proceeding, Mr Dutton would draft a contract for BRCP's consideration. Mr Dutton sought and obtained instructions that the deal was to proceed. He set about drafting a contract. He spoke to Mr Betros who told him that registration of the plan of subdivision might “not be too far away” and that BRCP would “want a put and call”.
  1. It is unclear how long the drafting process took, but by 21 September Mr Dutton had sent the draft to Mr Chan and the latter had obtained instructions and made proposed amendments to the draft. On that date Mr Chan sent an e-mail to Mr Dutton in the following terms:

“Please find attached the following amended documents (changes have been tracked):

  1. Call & Put Option Deed;
  1. Contract of Sale; and
  1. Special Conditions.

I believe that our client is satisfied with the terms of the above documents, however it has been provided with the documents at the same time for review.  Accordingly, I reserve its right to require amendments.

In anticipation of the documents being satisfactory to both parties, we also provide execution copies of the Call & Put Option Deed and Contract of Sale (to be signed and held in escrow).

If your client is ready to proceed with the signing of the documents, would you please have the documents signed in duplicate by your client and its guarantor and thereafter provide them to our office together with:

(a)the Security Bond;

(b)a PAMD Form 32a to waive the cooling off period in respect of the Call & Put Option Deed;

(c)a further PAMD Form 32a to waive the cooling off period to be held in escrow with the Contract of Sale.

A PAMD Form 30c Warning Statement is attached as the first or top page to both the Call & Put Option Deed and Contract of Sale.

I direct the buyer’s attention to the PAMD Form 30c Warning Statement.

The buyer must execute the PAMD Form 30c before the buyer signs the Call & Put Option Deed and Contract of Sale.

I look forward to hearing from you.”[33]

Although the e-mail was supposed to have five attachments, it seems that there were only four.  They were in .pdf format and were, it seems, neither encrypted nor password protected.  One of the attached documents was the deed.  It had the warning statement as the first page of the document.  Subsequently (on 26 September) Mr Dutton forwarded this e-mail to Hedley as part of a longer correspondence, without the attachments.

  1. Mr Dutton replied to Mr Chan on 23 September:

“As you would have noted from proposed special conditions 40 and 41 of the contract, it is critical to our client that prior to completion they can access the land for inspection and testing and, if they choose, to make a DA application.  Whilst those rights are granted by the contract, the put and call arrangement will mean that a contract will not be on foot until after July 2008.  Accordingly our client will require the rights conferred in special conditions 40 & 41 to the purchaser are also be conveyed to the grantee under the terms of the Put and Call Deed.”

Negotiations on that matter involving both parties and the agent took place over the next 24 hours, resulting in a compromise on the disputed clauses.  Both parties told the agent that they wanted the contract signed off by 28 September.

  1. Having been informed of the agreement, Mr Dutton contacted Mr Chan by e-mail a little after 9.00 am on 27 September asking if he could amend and e-mail the documents to record the compromise. A little after 3.00 p.m., Mr Chan responded as follows:

“I refer to your e-mail this morning.

Please find attached:

  1. Call & Put Option Deed (tracked and execution versions); and
  1. Contract of Sale.  This is the same document that was e-mailed to you on 21 September, 2007.

Would you please have your client and its guarantor sign the documents and return them to our office together with the other requirements as set out in our e-mail of 21 September, 2007.”

Again, the attachments were in .pdf format.  Mr Dutton printed the documents and sent them to Hedley for signature.  The deed still had the warning statement as its first page.  Mr Dutton had regard to the e-mail of 21 September 2007 in order to ascertain the requirements set out in it.  As can be seen in paragraph [53], those requirements included the signing by Hedley of the warning statement, to which its attention was directed, before it signed the deed.

  1. On Friday 28 September Mr Hedley signed not only the deed but also the warning statement (which was still the first page of the deed), thereby preventing the warning statement being ineffective under s 366D(4).  Apparently he signed both copies.  As an experienced developer he must have understood the warning statement.  Mr Dutton signed the lawyer's certificate necessary to give effect to the waiving of the cooling-off period[34] and returned both copies of the deed and various other documents to Mr Chan.  He described the documents as “signed documents”.
  1. I shall return to the rest of the narrative later.

A right to terminate?

  1. In 2005 Parliament completely repealed and re-enacted part 2 of ch 11 of PAMDA, presumably in response to the decision of the Court of Appeal in MNM Developments v Gerrard.[35]  Section 366A is one of a group of five sections which replaced the previous s 366 as part of those amendments.  The amendments made it clear that s 366 applied to proposed relevant contracts[36], enlarged the mandatory contents of the warning statement and mandated its form[37], added a requirement to direct the buyer's attention to the warning statement[38] and conferred on the buyer a right of termination in the event of non-compliance with the new provisions.[39]  Such a right is, of course, of utility only in the event that the proposed relevant contract matures into a relevant contract which becomes binding on the buyer.  Whether that happened in this case may for the moment be put to one side.
  1. The mechanism used in part to to achieve the purpose referred to in s 363(b)[40] was to require that if a buyer be given a proposed relevant contract for signing, he or she also be given a warning statement at the beginning of the contract; and given any other documents; and given an explicit statement directing attention to the warning statement and the contract.  In the case of unit sales (dealt with separately within each section), other documents must also be given.  Giving by fax is dealt with in s 366; by e-mail in s 366A; and by other means in s 366B.  A few features of these sections may be noted:
  • “Relevant contract” must refer to the contract form, not to the legal relationship between the parties; the word “proposed” makes it clear that the sections apply before the relationship is created.
  • A contract must be proposed, but there is no explicit indication of who must propose it.
  • The sections apply only when the proposed contract is faxed, e-mailed or otherwise given “for signing”.  In other words, for the sections to apply the giver must transmit the contract purposing that the buyer sign it or a printout of it.
  1. Both parties placed before me substantial submissions relating to the approach to statutory interpretation which ought to be applied in this case. There was not much real difference between those submissions, although as might be expected, Hedley's submission placed rather more emphasis on the need to refer specifically to the statutory text. Neither party suggested I should approach that text in a spirit of strictness or literalism and in that respect they were correct. I intend no disrespect by not referring further to those submissions. This case is not to be decided by reference to theories of statutory interpretation.
  1. BRCP’s alleged breach of s 366A occurred in its e-mail of 27 September.[41]  Hedley submitted that Mr Chan's failure to include in that message a clear statement directing the buyer's attention to the warning statement conferred on it a right to terminate the contract (if a binding contract came into existence), a right which it still retains today.  It acquired that right notwithstanding the clear statement directing its attention to the warning statement in the e-mail of 21 September, notwithstanding that the contract was drafted by its own solicitor and negotiated between the parties’ solicitors, and notwithstanding that it is a large and experienced land developer.  It submitted that it retains that right notwithstanding the fact that Mr Hedley presumably read and certainly signed the warning statement at the beginning of the deed without the need for any direction.  On any view it is an unattractive submission.
  1. In response BRCP submitted that on its proper construction the section did not require a direction to be included in the e-mail of 27 September because it had already been included in that of 21 September. In the alternative it submitted that the e-mail of 27 September contained a direction which complied with the section.
  1. The former submission contended that when a proposed relevant contract is given to a buyer more than once, it is sufficient if the buyer's attention is directed to the warning statement on the first occasion this occurs. Section 366A(2) should not be construed as requiring a direction already given once to be given each time a further copy of the contract is given. Such an interpretation would be capable of producing a multitude of absurd results. The same applied where an amended copy of the contract was given to the buyer, at least where the amendments were minor and were given within a short time of each other. The proposed contract was the same proposed relevant contract.
  1. I cannot accept that submission. While (if accepted) it may produce a sensible result in cases where only a short time elapses between the occasions on which the proposed relevant contract is given to a buyer, it might not do so in other cases. A test dependent upon the length of time between occasions when the buyer was given a proposed relevant contract would result in considerable uncertainty as to the existence of a right of termination in many cases. If such a doctrine were to be extended to cases where the contract document had undergone even minor amendment in the meantime, even greater uncertainty would result. Moreover that interpretation does not sit comfortably with the words of the section. It could hardly be suggested that if the section be complied with once, it is sufficient thereafter to ignore it. Finally, it must be remembered that the section applies only where the proposed relevant contract is given to the buyer for signature.[42]  It does not have to be complied with where there is an exchange of drafts in the course of negotiations.  When this is borne in mind some of the absurd results postulated on behalf of BRCP disappear into the realm of the improbable.
  1. The question thus becomes whether in the circumstances BRCP complied with the statutory requirement to include “a clear statement directing [Hedley's] attention to the warning statement and the proposed relevant contract”. Two features of the paragraph should be noted:
  • Unlike the warning statement, neither the form nor the precise content of the direction is prescribed;
  • The direction is plainly for the benefit of the buyer.
  1. The words “clear statement” are not words of narrow or precise denotation. The qualities required to bring a direction within their ambit are not fixed. They depend upon the circumstances of the case. What is a clear statement in one context may not be so in another. In the present case, context is important. Hedley does not suggest that the words “please find attached” were insufficient to constitute a clear statement directing its attention to the proposed relevant contract, as required by the section. However it denies BRCP's submission that the words “Would you please have your client and its guarantor sign the documents and return them to our office together with the other requirements as set out in our e-mail of 21 September, 2007” are sufficient to direct its attention to the warning statement.
  1. In my judgment BRCP's submission on this aspect of the case should be accepted. The requirement referred to specified that the warning statement be executed before Hedley signed the deed. The reference to the requirements of the earlier e-mail drew attention to that requirement amongst others and did so unequivocally. There were not so many other requirements as to impart a lack of clarity to the statement in the e-mail of 27 September. All this was reinforced by the presence of the explicit direction of attention to the warning statement in the earlier e-mail. The sufficiency of the direction may be inferred from the fact that Mr Dutton had regard to it and complied with the requirements to which it referred. Mr Hedley saw the warning statement and signed it. The direction achieved everything it was supposed to achieve. In my judgment BRCP did not fail to comply with s 366A(2)(a).
  1. It follows that even assuming a relevant contract came into existence and became binding on Hedley under s 365, no right of termination arose under s 367(2).

A digression

  1. The facts recounted above suggest the existence of another two possible issues which might have been, but were not, relied on in this case. In all probability they were avoided because they might have required the matter to go to trial. Litigants are under no obligation to raise every possible dispute between them. The issues are worth mentioning because of the wide application of the Act and the possible frequency with which they might arise in other cases.
  1. The first is whether the statutory requirement for the e-mail to contain a single document “protected against unauthorised change” would have been met simply by sending the document in unsecured .pdf format. I do not purport to be an expert at protecting computer files; but I doubt that giving the buyer a file which can be altered by commonly available software (Adobe Acrobat) with no further protection of that file would comply with the section. As I understand it the purpose of the .pdf format is to provide a lingua franca into which documents from most other programs can be converted for exchange with other computer users. Unless some form of password or other protection is used, it does not provide a means of security. Nor would it in my judgment be sufficient to set the read-only file attribute. That attribute is designed to limit inadvertent alteration of files, not to provide protection against deliberate change. It can be changed so easily by any user that I doubt it could be described as “protection” within the meaning of the section.
  1. It is unnecessary to speculate about what would be required by the words of the Act. It may well be that a password-protected .pdf file or something equivalent to the “password to modify” function in Microsoft Word would be required, allowing the recipient to open but not modify the file. But the question must be asked: what is the purpose of this provision? It does not seem to provide the buyer with any protection, and the seller would be unlikely to need protection. It may be that consideration could be given to its repeal before some buyer takes unfair advantage of it.
  1. The second issue not raised before me was whether Hedley waived the provision of the direction under s 366A(2)(a) by signing the warning statement the day after its solicitor received it.  There seems no reason in principle why a buyer should not waive the direction, and once its attention is in fact focused on the warning statement at the appropriate time, and it signs that statement with full knowledge of its contents, to insist upon withdrawal of the proposed relevant contract under s 366C might be thought to be the emptiest formality.  Some of the issues which would arise in that context were discussed by Douglas J in Blackman v Milne[43] and Juniper v Roberts[44].

Was there a binding contract?

  1. Hedley submits that by reason of the operation of s 365 of PAMDA, it is not bound by the deed (again, on the assumption that the deed satisfied the elements of the definition of “relevant contract”).  It submits that neither it nor its solicitors has received the warning statement and the deed from BRCP or its solicitors in a way mentioned in s 365(2).  BRCP submits that it has, and relies on events which occurred following those described above.  I turn to those events.
  1. On Monday 1 October 2007, having received the documents enclosed in Mr Dutton's letter of 28 September, BRCP signed one copy of the deed as a counterpart and Mr Chan e-mailed a copy of that counterpart to Mr Dutton, stating that he would provide the “original signed counterpart copy in due course”. Hedley contends that because that e-mail did not contain a clear statement directing the buyer's attention to the warning statement and the relevant contract, the requirements of s 365(2)(b)(i) were not satisfied; so that the parties did not then become bound by the contract.
  1. Two days later Mr Chan wrote to Mr Dutton by express post:

“Please find enclosed:

  1. Call & Put Option Deed dated 1 October, 2007 signed by our client;
  1. counterpart copy of the Call & Put Option Deed signed by your client; and

... .”

The documents described were enclosed.  The letter made no further reference to the warning or the deed.  Hedley submits that this omission prevented the parties becoming bound by the contract on receipt of that letter.

  1. Various steps were taken by the parties to further the contractual arrangements between then and April 2008. It is unnecessary to detail them for the purposes of the present issue. On 1 April 2008 Mr Dutton sent a facsimile to Mr Chan, the substantive parts of which were as follows:

“We have been instructed by our client to hereby give you notice that our client withdraws its offer to purchase the abovementioned property.  Such withdrawal is pursuant to section 365(3) of the Property Agents and Motor Dealers Act 2000, on the basis that our client is not bound by the Put and Call Option Deed as a result of your client’s failure to give the direction required by section 365(2)(b)(i) and/or section 365(2)(c)(ii).  The direction we are referring to is the direction required when returning the contract.

The signed Put and Call Option Deed was returned by your office to us, as our client’s agent, under cover of your email dated 1 October 2007 and by letter dated 3 October 2007.  Neither correspondence contained the required direction.

Accordingly, could you please direct the agent to return the Security Bond, paid under the Put and Call Option Deed to our client as soon as possible.”

  1. It is common ground that (subject to the issue of waiver), unless receipt of the e-mail of 1 October or the letter of 3 October complied with s 365(1), Hedley would  not be bound by the contract, even if it is a “relevant contract”.
  1. MNM Developments v Gerrard[45] was a case in which the Court of Appeal was considering PAMDA in the form in which it stood before the 2005 amendments.  The case drew attention to the difficulty which resulted from the use of “contract” in the body of the definition of “relevant contract” when applying that definition in what was then s 366.  Williams JA wrote, “The provisions of the Act in question are badly drafted; the reference in s 366(1) should not be to a ‘contract’ but to documents submitted to an intending purchaser.”  That problem was addressed by the 2005 amendments.  As noted above, s 366 was replaced by sections referring to a “proposed relevant contract”.  The same problem existed in what was then s 365(1).  Under that provision the parties were bound when the buyer received a copy of the contract signed by the buyer and the seller.  But that was impossible, for there could be no contract until the parties were bound.  Those who drafted the 2005 amendments could hardly have been unaware of this problem.  They replaced the previous sub-ss (1) and (2); but they did not make the new provisions applicable to proposed contracts or to the “contract form” referred to in sub-s (3).  It is inconceivable that this omission was accidental.  It must have been intended that the relevant contract to be received by the buyer was something more than a proposed contract document.
  1. Hedley submitted that s 365(1) must be taken to refer to the situation where there is a contract which at common law binds the parties.  There are some difficulties in the way of that approach.  At this point it is convenient to tabulate the differences between the pre-and post-amendment forms of the subsection:

 

Pre-2005 amendments

Post-2005 amendments

“bound for all purposes”

“bound”

“receives …”

“receives the warning statement”

“receives a copy of the contract”

“receives … the relevant contract”

“receives …”

“receives … from the seller or the seller's agent”

“contract signed by the buyer and the seller”

“contract”

…

“in a way mentioned in subsection (2)”

If Hedley's submission is correct, why were the words “signed by the buyer and the seller” not included in the amendment?  Their omission suggests an intention to cover unsigned contract documents (ie documents usually not binding under the general law).  If that be right, it could be that compliance with one of ss 366-366B might also satisfy the requirements of s 365.  Such an approach would preserve the  previous relationship between s 365 on the one hand and s 366 and its successors on the other.  It seems reasonably clear that before 2005 the seller was expected to provide the warning statement and a copy of the contract only once.  Hedley's submissions suggest it must be done twice.

  1. Associated with this question is another: does s 365(1) literally mean that the buyer and the seller are bound when the events described in it have occurred, regardless of the common law?  Or should it really be interpreted to mean not that the parties are bound when those events happen, but that they are not bound until they happen?  The former interpretation would give a literal effect to the words of the statute, but the result it would produce seems absurd, both in the damage which it would do to the fabric of the common law of contract and in the consequence that the cooling off period under the Act would commence prematurely.  The latter construction is more consistent with the interpretation contended for by Hedley.  On the other hand the latter construction seems to mean that not only must the seller jump through the ss 366-366B hoops before the contract is signed; if it wants to have a binding contract it must carry out a similar exercise after the contract is signed.  That might be regarded as pointless in many cases.
  1. Two further factors favour the latter construction. First, that construction breaks the previous nexus which existed between ss 365 and 366.  The near repetition in sub-ss (2) and (2A) of the delivery methods required under ss 366-366B suggests a separate obligation.  Second, the latter group of sections does not cover the case where the buyer prepares the signature copy of the documents and signs them before sending them to the seller for signature.  However s 365(1) seems to require that even in that case the contract does not become binding unless the seller causes the buyer to receive the specified documents in the specified manner.  Indeed, if s 365(1) is co-extensive with s 365(3), it is arguable that only when the buyer does that is the section applicable.  Only then would the buyer be regarded in conventional terms as making an offer to the seller.  Section 365(3) does not seem to contemplate that the situation described in ss 366-366B would fall under it; or is it intended to mean that a buyer in such a case can withdraw the seller’s offer?  But that subsection has its own difficulties: why was it even necessary when under the general law a person may withdraw an offer at any time before a contract becomes binding?
  1. Further difficulty arises in relation to precisely what it is that the buyer must receive from the seller under s 365(1).  The section provides that it must receive the relevant contract.  Previously it required that the buyer receive a copy of the contract.  That suggests that since 2005 the seller must send the buyer the (or at least an) original of the contract.  If Hedley's submission is correct, it must follow that the document must be signed by the seller when the buyer receives it, notwithstanding the deletion of the words “signed by the buyer and the seller” in the 2005 amendments.  BRCP went further and submitted that “relevant contract” could only mean the contract once executed by both the buyer and the seller, a construction which would render redundant the omission effected by the 2005 amendments.  And in any case, how is this requirement to be applied in situations where, as was intended in the present case, the contract is executed in part and counterpart?
  1. Yet another odd feature of the section is to be found in its opening words. These seem clearly to apply the section equally to both the buyer and the seller. In other words, if the proper construction of the section is that a contract is not binding until the specified events have occurred, then it is not binding on either the buyer or the seller until then.  Since only the seller could make those events occur, the buyer in such circumstances would have to remain in a state of uncertainty or withdraw from the agreement completely.  In effect the Act would confer the right of a put option on the seller.  That led Cullinane J to express the tentative view that despite the wording of the section, the seller became bound in accordance with the common law.[46]  Moreover that view was expressed in relation to the Act as it stood before the 2005 amendments[47]; that is when s 365(1) referred to the parties being “bound for all purposes”.  Support for that approach can be found in the fact that the Act is indifferent to when the seller becomes bound.  Two statutory consequences depend upon the buyer having or not having become bound[48]; but none is affected by the seller's position.  His Honour's view was followed by Douglas J in Blackman v Milne.[49]  On the other hand, interpreting the Act so that the seller is bound but the buyer is not can produce equally unfair consequences; and, more importantly, such an interpretation requires the words “and the seller” to be completely ignored.  Ignoring the express words of an act of Parliament is not something judges are supposed to do.
  1. On any view, s 365 is a confused mess.  No construction of it can be devised which conforms with the canons of interpretation and the accepted theory of the law of contract.  It is impossible to define the statutory intent with any sense of confidence.
  1. In my judgment compliance with s 366A, at least in the circumstances of this case, is insufficient to satisfy the requirements of s 365(1).  If Parliament had intended “relevant contract” in the latter provision to mean “proposed relevant contract”, it would undoubtedly have said so in the 2005 amendments.  Section 365 was amended in those amendments, but “relevant contract” was retained.  Detailed requirements dealing with the way in which the buyer must receive the warning statement and the contract were added.  Parliament created a new and distinct requirement to be satisfied before the parties became bound by the contract.  It is a requirement which is wider than that imposed on the seller in s 366A, for it covers cases where a buyer prepares and signs a contract before sending it to the seller for signature.
  1. This interpretation does not impede or frustrate ordinary commercial operations. In Queensland residential property is typically sold under a contract embodied in at least two originals, both or all of which are signed by all parties.  Usually the seller sends the form of contract to the buyer for signature before it is signed by the seller.  In cases to which ss 366-366B apply, it may be expected that usually little time will elapse between the contract documents being sent to the buyer for signature and of their being returned to the seller for its signature.  If the warning statement is attached to the proposed contract, it may be expected to remain so attached from the time of its first receipt by the buyer until the completion of the transaction.  It is no great imposition on the seller to have to draw attention to it twice.  In other cases (ie cases where those sections do not apply) the seller must jump through the hoops only once in order to generate a binding contract.  It should be noted that the requirement for the buyer to sign the warning statement under s 366(3) and (4) applies only when the proposed contract is given to the buyer for signing.
  1. On no view of the facts did Hedley receive the warning statement and the relevant contract in a way mentioned in s 365(2).  Subsection (2)(b) permitted receipt by e-mail if the e-mail contained a clear statement directing the buyer's attention to the warning statement and the contract.  Mr Chan's e-mail of 1 October drew attention to the contract but not to the warning statement.  It therefore did not satisfy the requirements of the subsection.  Subsection (2)(c) permitted receipt of the warning statement and the contract by post if the seller directed the buyer's attention to the warning statement and the contract.  Mr Chan's letter of 3 October drew attention to the deed but not to the warning statement.  It might not have been necessary to include express reference to the warning statement in the covering letter if attention were drawn to it by some other means - by flagging it, for example.  However there is no evidence of any such conduct.  The buyer's attention not having been directed to the warning statement, the letter did not satisfy the requirements of the subsection.
  1. BRCP submitted that Hedley's attention was sufficiently drawn to the warning statement by the form in which it was delivered, ie as the top sheet of the contract to which it was attached, and by the completion of the requirements referred to in the e-mail of 21 September discussed above. However neither the e-mail of 1 October nor the letter of 3 October referred to any of the previous correspondence, let alone that particular e-mail. I have no doubt that Mr Dutton and Mr Hedley were perfectly well aware that the warning statement was attached to the contract in the manner described (Mr Hedley had signed it!), but the requirement of the Act is not that the buyer be aware of the warning statement; it is that the seller direct attention to it.[50]  It matters not that in the present case such a direction would have been empty and purposeless.  The Act clearly requires that unless it be given or until it be given, the parties, or at least the buyer, are not bound by the contract.  Form triumphs over substance.  Unless the magic words are written or the magic spell is cast, the buyer is not bound.  Well may it laugh at the seller who failed to learn all the details of the PAMDA book of incantations.
  1. Having regard to these findings it is unnecessary for me to decide whether it is ever possible to comply with s 365(1) where a contract is formed by exchange of part and counterpart.
  1. I summarise my findings so far:
  • The deed did not embody a contract for the sale of residential property and was therefore not a “relevant contract” within the meaning of PAMDA[51];
  • If that finding be wrong, Hedley did not (subject to the question of waiver) become bound by the deed[52];
  • If, contrary to that finding, Hedley did become bound by the deed as a relevant contract, it acquired no right of termination under s 367(2).[53]

Waiver

  1. Following the exchange of parts already described, Mr Chan applied to the Office of Fair Trading (“the Office”) on behalf of BRCP for exemption from ss 8, 9, 10A and 11 of the Land Sales Act 1984.  Those provisions impose obligations and restrictions on the sale of proposed allotments.  The application, made on 5 October 2007 pursuant to s 19 of that Act, informed the Office that BRCP had granted Hedley an option to buy lot 203.  On 11 October the Office issued a requisition for the consent of the purchaser to the exemptions applied for by BRCP.  Mr Chan e-mailed the documents, including the requisition, to Mr Dutton on 12 October, asking that he arrange for the consent to be signed.  Hedley signed the consent on 19 October and it was then returned to Mr Chan by e-mail.  In the consent Hedley identified itself as “a party to a Call and Put Option Deed dated 1 October 2007” with BRCP.  Mr Chan sent it to the Office and on 26 October 2007 the delegate of the Director-General granted the application.  Hedley admits that the consent was intended by it to convey to BRCP and to the Office that Hedley was a party to a binding contract, namely the deed.
  1. On 12 February 2008 Hedley requested BRCP to sign item 20 of a development application for a material change of use which it proposed to make to the Council in respect of lot 203. Item 20 provided for the landowner’s consent to the making of the application. That consent was required by s 3.2.1(3) of IPA.  A planning report accompanying the application began, “[Hedley] has a contract with [BRCP] to purchase the vacant land at the southern end of the Oasis Resort”.  BRCP duly signed the application and it was lodged with the Council.

A pleading point

  1. BRCP further alleged in its points of defence:

“29(b)The said consent and proposed development application was intended by the Applicant (by Hedley Constructions Pty Ltd, Tom Hedley and Mr Dutton) to convey to the Respondent and the Cairns City Council that the Applicant was a party to a binding contract, namely the Sale Agreement.”

  1. Hedley responded:

“14.Hedley denies as untrue the allegations contained in paragraph 27, 29(b), 31 and 32 of the Defence.”

  1. The application to this court was filed in mid-June 2008. Points of claim and points of defence were delivered pursuant to an order made on 18 July 2008, less than a fortnight before the hearing commenced. Both parties subsequently amended their pleadings, Hedley three days before the hearing and BRCP the evening before the hearing, when it raised the defence of waiver in thirteen paragraphs of factual allegations. Although there had been no direction for the delivery of points of reply, I indicated at the commencement of the hearing that a reply ought to be delivered, in order to identify what were the disputed issues of fact. Hedley prepared its points of reply overnight and filed and served it early on the second day of the hearing without objection from BRCP. All allegations of fact except that set out above were admitted.
  1. After my decision was reserved BRCP sought leave to make further submissions on the pleadings. It submitted that I should rule that Hedley was deemed to have admitted para 29(b) and two other paragraphs containing factual allegations relating to issues concerning the operation of ch 11[54] by operation of r 166(5) of the Uniform Civil Procedure Rules.
  1. That submission is utterly devoid of merit. Had the point been raised at the hearing I would certainly either have dispensed with the requirements of the rules (if they applied to short points of pleading) or allowed Hedley to amend. I have no doubt having regard to the way in which the case was conducted that there would have been no requirement for further evidence. In any event no objection was taken at the time. Moreover the additional facts even if true are only marginally relevant. I refuse the leave sought.

The merits of the waiver submission

  1. BRCP alleged that by reason of the facts set out in para [91] or those in para [92] or both, “[Hedley] waived any right under s 365(3) of the Act”.  That formulation was doubtless in response to para 3 of the application, where Hedley seeks a declaration that it “had or in the alternative has the right pursuant to s 365(3) of the Act to withdraw any offer made by it to be bound by the contract”.  That subsection provides:

“(3)Without limiting how the buyer may withdraw the offer to purchase made in the contract form, the buyer may withdraw the offer at any time before being bound by the relevant contract under subsection (1) by giving written notice of withdrawal, including notice by fax, to the seller or the seller’s agent.”

It may be assumed that Hedley made an offer to purchase lot 203 when Mr Dutton sent the deed signed by Hedley to Mr Chan on 28 September 2007.  It may also be assumed that Hedley did not become bound by the deed under s 365(1), since the waiver issue arises only in that situation.

  1. BRCP did not allege express waiver but relied upon waiver by conduct. It submitted that the conduct described above[55] was inconsistent with the continued existence of the statutory right to withdraw the offer.
  1. It is correct that for waiver to have occurred, there must have been conduct by Hedley which was inconsistent with the continued existence of the right to withdraw the offer. The existence of that right depended upon Hedley not having become bound by the deed. The requisition issued by the Office and copied to Hedley required the consent of the purchaser and Hedley gave that consent as a party to the deed. Clearly it regarded the deed as conferring the status of purchaser upon it. Under the Land Sales Act 1984 a purchaser is a person who signs an instrument intended to bind the person (absolutely or conditionally) to purchase a proposed allotment.[56]  Hedley must therefore be taken to have placed itself in the position of being a person who had signed an instrument intended to bind it (absolutely or conditionally).  If that were all, it could not be said that Hedley's conduct was inconsistent with the continued existence of a right to withdraw its offer; being a signatory to an instrument intended to bind is not the same as being a signatory to a binding instrument.  But Hedley went further.  It intended the consent to convey to BRCP and the Office that it was a party to a binding contract.  With that intention it sent the consent to BRCP for forwarding to the Office.  So the act was inconsistent with retaining an option not to be bound by the deed.
  1. This is not a case of estoppel. BRCP does not have to show that it acted in reliance upon any representation. Waiver is unilateral. I find that Hedley waived any right under s 365(3) of PAMDA to withdraw its offer.
  1. I do not reach the same conclusion in relation to Hedley's development application. IPA contains no requirement that an applicant have any interest in the land the subject of the application, let alone an interest under a binding contract.  BRCP did not argue that the Council would have been entitled to refuse to receive the application[57] or to refuse it[58] on the ground that the deed was not binding or that Hedley was entitled to withdraw its offer, and I doubt if such an argument could succeed.  The necessary inconsistency has not been demonstrated.
  1. It is unnecessary to consider whether the right under s 365(3) was of such a nature as to be incapable of being waived.  No such argument was addressed to me.
  1. BRCP sought to rely on the decision of Douglas J in Blackman v Milne.  However in that case his Honour was not concerned with a claim of waiver of the right under  s 365(3).  That decision concerned the question whether the buyer could waive the “right” to have its attention directed to the warning statement under ss 365(1) and (2).  His Honour held that waiver was possible, citing the decision of Cullinane J in Grieve v Enge.  It seems implicit in those decisions that a buyer could contract out of s 365.  With great respect, as presently advised I doubt that is consistent with the objects and policy of PAMDA.  Moreover, as I have already observed, it is an outcome which requires the words “and the seller” in s 365(1) to be ignored.  In my judgment that decision does not assist BRCP’s argument in the present case.
  1. In summary, if (contrary to my finding) the deed were a relevant contract within the meaning of PAMDA, Hedley would not have become bound by it, but would have waived its right to withdraw under s 365(3) in October 2007.  Its purported withdrawal on 1 April 2008 would therefore have been ineffective.

Order

  1. Notwithstanding the absence of a cross-application, I am inclined to think that it may be appropriate to make a negative declaration reversing the effect of paragraph 1 of the application.  There seems no reason why costs should not follow the event.  However I shall hear the parties on both of these questions.

Footnotes

[1] PAMDA, s 364.

[2] There was no challenge to the correctness of the decision of Philippides J in Mark Bain Constructions Pty Ltd v Barling [2006] QSC 048; contrast Cheree-Ann Property Developers Pty Ltd v East West International Development Pty Ltd [2007] 1 Qd R 132.

[3] Land is defined in sch 2 of PAMDA to include a proposed lot under the Land Title Act 1994.

[4] http://www.cairns.qld.gov.au/cairns/files/cairns_plan/maps/pa_cbd_north_cairns.pdf; I was invited by the parties to use this web site to save reproduction costs.

[5] Compare Tolocorp Pty Ltd v Noosa Shire Council [2007] QCA 33 at [73].

[6] Act 62 of 2000.

[7] Section 366.

[8] Section 367.

[9] Section 368.  The period could be shortened (s 370) or waived (s 369).

[10] Section 364.

[11] Section 364.

[12] Section 365.  That odd provision may have been drafted in error.  If so, the error was corrected by Act 13 of 2002 to make the contract binding when the buyer received the signed contract.

[13] Queensland, Parliamentary Debates, Legislative Assembly, 11 September 2001, p 2564 (Hon M Rose).

[14] Paragraph [5].

[15] (1980) 145 CLR 485 at p 501.

[16] Rathera Pty Ltd v Gold Coast City Council [2000] QCA 506; reported sub nom Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476.

[17] Citing Bartlett v Brisbane City Council [2002] QPEC 043 and Bhat v Brisbane City Council [2002] QPEC 044.

[18] Section 3.2.1.

[19] Rathera Pty Ltd v Gold Coast City Council [2000] QCA 506 at [32].

[20] Section 17(4).

[21] Queensland, Parliamentary Debates, Legislative Assembly, 31 May 2001, p 1399 (Hon M Rose).

[22] Paragraph [21].

[23] [2000] QCA 506 at [32], [21].

[24] Such a description would also be appropriate having regard the words of Stephen J cited in para [23].

[25] Paragraph [24].

[26] Paragraph [5].

[27] See also ex 10, p 3.

[28] [2005] QCA 310.

[29] Paragraph [29].

[30] Paragraph [5].

[31] IPA, s 3.5.19.

[32] IPA, ss 3.5.16 and 3.5.17.  The appeal period is 20 business days: s 4.1.27(2).

[33] Emphasis added.

[34] Section 369.  An odd feature of the Act is that the buyer may waive the cooling off period if the solicitor's certificate is given to the seller under a proposed relevant contract before the buyer is bound.  However even if this is done, the seller must still give the buyer the warning statement under ss 366/366A/366B and (if the contract is to become binding) under s 365(2).  The warning statement must include the information that the contract is subject to a cooling off period (s 366D(1)(a)), thereby rendering it, one would have thought, misleading and deceptive in such a case.

[35] [2005] 2 Qd R 515.

[36] Sections 363, 366-366B.  Special provision was needed to deal with proposed contracts sent by fax or e-mail.

[37] Section 366D.

[38] Sections 366(2)(a), (3)(a); 366A(2)(a), (3)(a); 366B(4), (6).

[39] Section 367.

[40] “To require all proposed relevant contracts or relevant contracts for the sale of residential property in Queensland to include consumer protection information, including a statement that a relevant contract is subject to a cooling-off period”.

[41] Paragraph [55].

[42] Section 366A(1).

[43] [2006] QSC 350.

[44] [2007] QSC 379.

[45] [2005] 2 Qd R 515.

[46] Grieve v Enge [2006] QSC 037 at [40] ff.

[47] That is clear from the text of his Honour's reasons for judgment as well as from the dates of the relevant events.  The judgment was delivered in early 2006 and it seems the wording of s 365 quoted in it at [34] was inadvertently copied from the amended version of the Act.

[48] Section 364 “cooling-off period” and s 365(3).

[49] [2006] QSC 350.

[50] On this aspect of the case, see also paras [48], [58], [59], [63], [67] and [86].

[51] Paragraph [45].

[52] Paragraph [88].

[53] Paragraph [68].

[54] The other paragraphs alleged that on or about 27 September 2007 Mr Dutton and/or Mr Hedley and/or Ms Cooke had regard to the e-mail of 21 September in order to ascertain the requirements set out in it; and that on receiving Mr Chan's e-mail of 1 October one or more of those persons looked at the warning statement.

[55] Paragraphs [91] and [92].

[56] Section 6A.

[57] IPA, s 3.2.1(8).

[58] IPA, s 3.5.11(1)(c).

Close

Editorial Notes

  • Published Case Name:

    Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd

  • Shortened Case Name:

    Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd

  • MNC:

    [2008] QSC 261

  • Court:

    QSC

  • Judge(s):

    Fryberg J

  • Date:

    29 Oct 2008

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2008] QSC 26129 Oct 2008-
Appeal Determined (QCA)[2009] QCA 23114 Aug 2009-

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Bartlett & Anor v Brisbane City Council [2002] QPEC 43
2 citations
Jump To
Cite 1 - [2002] QPEC 43
Cite 2 - [2002] QPEC 43
Bhat v Brisbane City Council [2002] QPEC 44
2 citations
Jump To
Cite 1 - [2002] QPEC 44
Cite 2 - [2002] QPEC 44
Blackman v Milne[2007] 1 Qd R 198; [2006] QSC 350
4 citations
Jump To
Cite 1 - [2006] QSC 350
Cite 2 - [2006] QSC 350
Cite 3 - [2006] QSC 350
Cite 4 - [2007] 1 Qd R 198
Cheree-Ann Property Developers Pty Ltd v East West International Development Pty Ltd[2007] 1 Qd R 132; [2006] QSC 182
1 citation
Jump To
Cite 1 - [2007] 1 Qd R 132
Grieve v Enge [2006] QSC 37
2 citations
Jump To
Cite 1 - [2006] QSC 37
Cite 2 - [2006] QSC 37
Juniper v Roberts [2007] QSC 379
2 citations
Jump To
Cite 1 - [2007] QSC 379
Cite 2 - [2007] QSC 379
Mark Bain Constructions Pty Ltd v Tim Barling [2006] QSC 48
1 citation
Jump To
Cite 1 - [2006] QSC 48
MNM Developments Pty Ltd v Gerrard[2005] 2 Qd R 515; [2005] QCA 230
4 citations
Jump To
Cite 1 - [2005] QCA 230
Cite 2 - [2005] 2 Qd R 515
Cite 3 - [2005] 2 Qd R 515
Cite 4 - [2005] 2 Qd R 515
Pearson v Thuringowa City Council[2006] 1 Qd R 416; [2005] QCA 310
3 citations
Jump To
Cite 1 - [2005] QCA 310
Cite 2 - [2005] QCA 310
Cite 3 - [2006] 1 Qd R 416
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 C. L. R. 485
2 citations
Jump To
Cite 1 - (1980) 145 C. L. R. 485
Cite 2 - (1980) 145 C. L. R. 485
Rathera P/L v Gold Coast C C[2001] 2 Qd R 476; [2000] QCA 506
6 citations
Jump To
Cite 1 - [2000] QCA 506
Cite 2 - [2000] QCA 506
Cite 3 - [2000] QCA 506
Cite 4 - [2000] QCA 506
Cite 5 - [2001] 2 Qd R 476
Cite 6 - [2001] 2 Qd R 476
Tolocorp Pty Ltd v Noosa Shire Council [2007] QCA 33
1 citation
Jump To
Cite 1 - [2007] QCA 33

Cases Citing

Case NameFull CitationFrequency
APM Property 3 Pty Ltd v Blondeau[2011] 2 Qd R 1; [2009] QSC 3264 citations
Arc Holdings (Aust) Pty Ltd v Riana Pty Ltd [2010] QCA 269 5 citations
Arc Holdings (Aust) Pty Ltd v Riana Pty Ltd [2009] QSC 3745 citations
Boylan v Gallagher[2012] 1 Qd R 420; [2011] QCA 24012 citations
Boylan v Gallagher [2011] QCA 2871 citation
Collis v Currumbin Investments Pty Ltd [2009] QSC 297 2 citations
Doolan v Rothmont Projects Pty Ltd [2010] QSC 1934 citations
Gallagher v Boylan [2011] QSC 942 citations
Jaid Pty Ltd v Beach Administration Pty Ltd [2009] QDC 31 citation
Marchesi v Viridian Noosa Pty Ltd [2010] QSC 324 2 citations
Meridien AB Pty Ltd v Jackson [2012] QSC 2602 citations
Meridien AB Pty Ltd v Jackson[2014] 1 Qd R 142; [2013] QCA 1212 citations
Modi v SDW Projects Pty Ltd[2015] 1 Qd R 519; [2013] QCA 2215 citations
Rice v Ray [2009] QDC 2753 citations
SDW Projects Pty Ltd v Modi [2012] QSC 4002 citations
Sunbay Projects Pty Ltd v PR Wieland Holdings Pty Ltd [2010] QSC 368 2 citations
1

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