Collis v Currumbin Investments Pty Ltd
[2009] QSC 297
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- Notable Unreported Decision
- Collis v Currumbin Investments Pty Ltd[2009] QSC 297
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Collis v Currumbin Investments Pty Ltd[2009] QSC 297
Collis v Currumbin Investments Pty Ltd[2009] QSC 297
SUPREME COURT OF QUEENSLAND
CITATION: | Collis v Currumbin Investments Pty Ltd [2009] QSC 297 |
PARTIES: | PAUL COLLIS |
FILE NO/S: | BS 8189 of 2009 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 18 September 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 September 2009 |
JUDGE: | Chief Justice |
ORDERS: | |
CATCHWORDS: | CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNINGS AND LIKE MATTERS – whether warning statement drawn to buyer’s attention – waiver and estoppel Property Agents and Motor Dealers Act 2000 (Qld) s 364, s 365(1)(b) s 365(2A)(c)(ii), s 368 Blackman v Milne [2006] QSC 350, considered Hedley Commercial Property Service Pty Ltd v BRCP Oasis Land Pty Ltd [2008] QSC 261, considered Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, considered |
COUNSEL: | G Radcliff for the applicant P L O'Shea SC for the respondent |
SOLICITORS: | Radcliff Taylor Lawyers for the applicant Kinneally Miley for the respondent |
- CHIEF JUSTICE:
Introduction
The applicant Mr Collis seeks a declaration that he lawfully terminated an agreement dated 10 January 2008, and the return of the deposit monies of $39,500. It was an agreement for the purchase by Mr Collis of a proposed lot, on which a dwelling house was to be constructed. The case raises questions under the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA).
Events of 9 January 2008
- On 9 January 2008 Mr Collis attended the sales office of the respondent company. He signed the contractual documents proffered to him. There is a factual issue, not susceptible of summary resolution, whether the seller or the seller’s agent directed the attention of Mr Collis to the warning statement, as required by s 365(2A)(c)(ii).
Events of 14 January 2008
- Then on or about 14 January 2008, the solicitors for Mr Collis received, from the solicitors for the respondent, a letter enclosing the contract which had by then been signed by the respondent (seller). The letter said:
“We now enclose the following documents:
- Important Notice to Buyer;
- PAMD Form 27c;
- Disclosure Statement; and
- PAMD Form 30c and Contract.”
Mr Thorpe, the solicitor for the respondent, confirms that the documents were included in that order. The “Important Notice to Buyer” was the first document in a set of documents spirally bound.
Whether the requirement of s 365(2A)(c)(ii) PAMDA was satisfied.
- Under s 365(1)(b), Mr Collis and the respondent became bound by the contract when, as relevant, the buyer’s agent (his solicitors) received the warning statement (the Important Notice to Buyer document) “in a way mentioned in subsection (2A)”. Subsection (2A)(c)(ii) refers to the agent’s receiving the document if, as presently relevant “the seller’s agent directs the attention of the…buyer’s agent to the warning statement…” The examples under the statutory provision include “by including a paragraph in an accompanying letter”. When the buyer became bound, the five day “cooling-off period”, within which the buyer might terminate (s 368), commenced.
- There was no purported termination within the ensuing five day period. But Mr Radcliff, for Mr Collis, submitted that the cooling-off period had not commenced, because the respondent had not directed the attention of Mr Collis or his solicitor to the warning statement. Mr Radcliff submitted the letter of 14 January 2008 “in no way draws the attention of the applicant to the warning statement”. He referred to the decision of Fryberg J in Hedley Commercial Property Service Pty Ltd v BRCP Oasis Land Pty Ltd [2008] QSC 261 esp paras 84-88.
- On the other hand, Mr O'Shea SC, for the respondent, submitted that the respondent sufficiently directed the attention of the solicitors for Mr Collis to the warning statement, by referring to it in the short one page letter of 14 January 2008, with its being the first document of the four referred to, and the first in the first set in spiral binding. It was additionally significant, Mr O'Shea submitted, that the recipient of the letter was the solicitor for Mr Collis, who might have been expected to appreciate the significance of that particular document.
- I consider that the respondent did direct the attention of the solicitors for Mr Collis to the warning statement, by referring to it expressly in that short one page letter of 14 January 2008, and as the first of the four numbered documents enclosed with the letter, describing it as an “Important Notice to Buyer”. It was not necessary, in order to secure compliance with the statutory requirement, that the words “direct attention” as such must have been used. It was sufficient if, by referring specifically to the document, as one of importance, and prominently in an otherwise brief communication, the respondent in fact drew attention to the document. It did so. The position would have been different had the notice not been referred to expressly in the letter, and simply included in the same envelope when delivered.
- It follows that Mr Collis then became bound to the contract (s 365(1)(b)), the cooling-off period began (s 364 definition of “cooling-off period”), and Mr Collis could within those five days have terminated the contract (s 368). Mr Collis did not exercise that right of termination, so that the contract subsisted.
- I turn to the respondent’s alternative position, which assumes (contrary to my view) that in mid-January 2008 there was no compliance with s 365(2A)(c)(ii).
Events of October 2008: waiver/estoppel
- According to the affidavit of Mr Chapman, a director of the respondent, on 20 October 2008 he wrote to Mr Collis offering some “design upgrades, including dual water reticulation, each house having its own 10,000 litre tank, natural gas supply and reticulation and electrical wiring”, at the same time requesting an extension of the period for construction allowed by the contract, from 18 months to 36 months. Mr Collis subsequently returned a signed form to the respondent confirming that extension.
- Mr Chapman swears as follows:
“Currumbin Investments (the respondent) did not contract with a builder to build houses where there was (to the knowledge of Currumbin Investments) doubt as to there being a building contract in place, or where the buyer was in default or otherwise indicating an intention not to proceed with the contract because it was unable or unwilling to settle.”
- On 25 November 2008 the solicitors for the respondent wrote to Mr Collis’s solicitors saying:
“Our client expects registration of the plan and settlement to occur in July 2009. Our client expects to appoint a builder by the end of this week. The sequencing of building of the house may change giving rise to a later settlement date. Please advise immediately (before our client appoints a builder) if your client has any issue with settlement occurring in the period from July to December 2009.”
No such advice was forthcoming. The respondent proceeded to engage a builder.
- Mr O'Shea submitted that Mr Collis thereby waived any right to terminate in relation to the warning statement. The respondent relied on waiver in the sense of estoppel rather than election, and referred to Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 428. The evidence led for the respondent would, if accepted, arguably establish the elements going to found an equitable estoppel or waiver. On that evidence, Mr Collis made a clear representation that he was proceeding with a subsisting contract, upon which the respondent relied in the steps it subsequently took.
- In the event that the parties had not by then become bound to a contract, for the reason that the requirement in s 365(2A)(c)(ii) had not been satisfied, Mr Radcliff queried how any waiver or estoppel could operate, there being no established legal framework of rights and duties binding the parties.
- Mr O'Shea referred in response to the comparable case of Blackman v Milne [2006] QSC 350, paras 14 and 20. I conclude that by his conduct in October 2008, Mr Collis waived his “statutory right… to have the buyer’s attention directed to the warning statement”, that being “a statutory right created for the buyer’s private benefit” (para 20).
Events of March 2009
- It remains to mention the purported determination of the contract by Mr Collis in March 2009.
- On 3 March 2009 the respondent wrote to Mr Collis enclosing various documents, including an extension agreement and another copy of the warning notice, which it said had been “delivered to your solicitor with letter of 14 January 2008 and the Contract of Sale as a direction in accordance with the PAMD Act 2000 (s 365(2A)(c)(ii))”.
The letter then said:
“Out of an abundance of caution, we again direct your attention to the PAMD Form 30c Warning Statement; BCCM Form 14 information sheet and the relevant contract (spiral bound in that order as the document referred to as the Contract of Sale).”
- Mr Collis proceeded on the basis that was the first and only compliance with s 365(2A)(c)(ii), and on 9 March 2009 (conceded to be within any five day period arising), the solicitors for Mr Collis wrote to the respondent purporting to terminate the contract.
- That purported termination was of no effect, on two alternate bases:
- because the only applicable “cooling-off period” had commenced on or about 14 January 2008, the letter of that date having satisfied the requirement of s 365(2A)(c)(ii), and Mr Collis did not terminate within that period; or
- because if, contrary to my view, the respondent had not complied with s 365(2A)(c)(ii), in October 2008 Mr Collis acted in such a way as to waive his statutory right to have the warning statement drawn to his attention or to terminate in relation to any aspect of that requirement.
- I should make clear the extent of my factual determination on this application. I have determined matter one, where the underlying facts are clear and undisputed. As to the alternative matter two, it suffices that I conclude that the respondent’s position in that respect is factually arguable, so as to render inappropriate any summary determination of the application in Mr Collis’s favour, should there have been no compliance with s 365(2A)(c)(ii) to that stage.
Orders
- I therefore order that the originating application filed on 30 July 2009 be dismissed. I order the applicant to pay the respondent’s costs, to be assessed on the standard basis. I reserve liberty to apply in writing, within seven days, should a different costs order be sought.