Modi & Clements v SDW Projects Pty Ltd & Ors

This decision is yet another in the long line of decisions concerning the adequacy of warning notices attached to contracts for the sale of land, which notices are required by the Property Agents and Motor Dealers Act. In this case it was alleged that the letters sent with the contracts and information sheets did not direct the attention of the purchasers to those documents. The letters enclosing the contracts only said words to the effect of “We now enclose Contract of Sale and Disclosure Statement for your attention”. As is often the situation in relation to cases of the present nature, by the time that the matter is dealt with the courts and, in particular, by the Court of Appeal, the requirements of this ever evolving legislation have changed. So too in this case the provisions under discussion have since been amended. Nevertheless, the case remains important as it relates to the construction of legislation which is likely to be relevant to a number of decisions. The Court of Appeal focused attention on the words of the sections in question and asked the question of whether or not the letters drew attention to the information sheet and warning statement? The Court of Appeal distinguished its earlier decision in Boyland v Gallagher [2012] 1 Qd R 420 which had seemed to suggest that there was no need for specific reference to the relevant documents and that a general statement would be sufficient. The Court effectively held that the decision in Boyland v Gallagher should be confined to its particular facts. The consequence was that the letter enclosing the contracts was insufficient compliance with the PAMDA requirements and the purchasers were entitled to terminate the contracts.