APM Property 3 Pty Ltd v Blondeau - [2009] QSC 326

SUPREME COURT OF QUEENSLAND

CITATION:

APM Property 3 Pty Ltd v Blondeau & Ors [2009] QSC 326

PARTIES:

APM PROPERTY 3 PTY LTD ACN 120 616 346
(applicant)
v
CHRISTIAN BLONDEAU AS TRUSTEE FOR FRANCE AT LEISURE TRUST
(first respondent)
HAMBI PTY LTD ACN 075 762 293 AS TRUSTEE FOR THE HAMBI FAMILY TRUST
(second respondent)
PENKLIS INVESTMENTS PTY LTD ACN 123 909 893 AS TRUSTEE FOR THE PENKLIS INVESTMENTS TRUST
(third respondent)
GWR FINANCIAL SERVICES PTY LTD ACN 093 820 029 AND TAMLIN HOLDINGS PTY LTD ACN 009 117 195
(fourth respondent)
HOME CARE HEALTH SERVICES PTY LTD ACN 010 041 273 AS TRUSTEE FOR L AZAR FAMILY TRUST
(fifth respondent)
INFINITE SYSTEMS GROUP PTY LTD ACN 096 749 745
(sixth respondent)
ADLET PTY LTD ACN 079 342 733 AS TRUSTEE FOR FSPM TRUST
(seventh respondent)
F.J.M. PTY LTD ACN 009 682 697 AS TRUSTEE FOR THE CONRAD UNIT TRUST
(eighth respondent)
DAVJOH INVESTMENTS PTY LTD ACN 011 008 423 AS TRUSTEE FOR KASSOS OFFICE TRUST, ALLENS OFFICE TRUST AND SCLAVOS OFFICE TRUST

(ninth respondent)
NICHOLAS CHRIS NICOLAOU AS TRUSTEE FOR THE NICVAGAP DISCRETIONARY TRUST
(tenth respondent)
C & C GROUP PTY LTD ACN 078 182 126 AS TRUSTEE
(eleventh respondent)
INSIGHT GROUP (QLD) PTY LTD ACN 118 120 157
(twelfth respondent)
ION CAPITAL INVESTMENT CORPORATION PTY LTD ACN 126 348 801 AS TRUSTEE FOR ION CAPITAL INVESTMENT UNIT TRUST
(thirteenth respondent)

FILE NO:

BS 8561 of 2009

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

8 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

25 and 30 September 2009

JUDGE:

Mullins J

ORDER:

1. The originating application is dismissed

2. It is declared that each of the first to eleventh respondents has rescinded the option agreement described respectively in paragraphs 7 to 17 of the affidavit of Alec Leonard Spencer filed on 7 August 2009 pursuant to s 421(3) of the Environmental Protection Act 1994 or, alternatively, has cancelled the option agreement under s 213(6) of the Body Corporate and Community Management Act 1997

3. It is declared that the twelfth respondent has rescinded the contract referred to in paragraph 43 of the affidavit of Alec Leonard Spencer filed on 7 August 2009 pursuant to s 421(3) of the Environmental Protection Act 1994

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION ACTS AND CLAUSES – part 8 of chapter 7 of the Environmental Protection Act 1994 (Qld) – where owner of land proposed to reconfigure land into 24 lots under a community titles scheme – where owner entered into put and call option agreements with purchasers in relation to sale of proposed lots in the community titles scheme – where no notice was given to the purchasers prior to the entry into the option agreements that the particulars of the scheme land were recorded in the environmental management register – whether the owner was required to comply with s 421(2) of the Environmental Protection Act 1994 (Qld) prior to entering into the option agreements – whether s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] QSC 326
Decision Date: 8 October 2009

CaseChat Overview and Summary

APM Property 3 Pty Ltd sought to re-configure a parcel of land into 24 lots under a community titles scheme. It entered into put and call option agreements with various purchasers to sell proposed lots in the scheme. The purchasers were not notified that the particulars of the scheme land were recorded in the environmental management register. The purchasers sought to rescind the option agreements on the basis that APM was required to comply with s 421(2) of the Environmental Protection Act 1994 (Qld) prior to entering into the option agreements. The purchasers also sought to rescind the option agreements on the basis that APM was required to comply with s 213(1) of the Body Corporate and Community Management Act 1997 (Qld) prior to entering into the option agreements. APM submitted that s 421(2) does not apply where the subject of the purchase is a proposed lot to be subdivided out of the scheme land and that the option agreements do not constitute agreements to dispose of the land that is recorded in the environmental management register. APM further submitted that s 213(1) does not apply to the option agreements.

The court held that the option agreements did not constitute agreements to dispose of the land that is recorded in the environmental management register. The court held that the option agreements were agreements to sell a proposed lot to be subdivided out of the scheme land and that the particulars of the land recorded in the environment management register were those of the scheme land and not the proposed lot. The court held that s 421(2) did not apply. The court held that s 213(1) did not apply to the option agreements as they were not contracts to which s 213(1) applied. The court held that APM was not required to comply with s 213(1) prior to entering into the option agreements. The purchasers were entitled to rescind the option agreements under s 421(3) of the Environmental Protection Act 1994 (Qld).

The court dismissed APM's application. It declared that the option agreements had been rescinded by the purchasers. It further declared that the twelfth respondent had rescinded the contract referred to in paragraph 43 of the affidavit of Alec Leonard Spencer filed on 7 August 2009 pursuant to s 421(3) of the Environmental Protection Act 1994.

Orders

Orders of the court

1. The originating application is dismissed

2. It is declared that each of the first to eleventh respondents has rescinded the option agreement described respectively in paragraphs 7 to 17 of the affidavit of Alec Leonard Spencer filed on 7 August 2009 pursuant to s 421(3) of the Environmental Protection Act 1994 or, alternatively, has cancelled the option agreement under s 213(6) of the Body Corporate and Community Management Act 1997

3. It is declared that the twelfth respondent has rescinded the contract referred to in paragraph 43 of the affidavit of Alec Leonard Spencer filed on 7 August 2009 pursuant to s 421(3) of the Environmental Protection Act 1994

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	APM Property 3 Pty Ltd v Blondeau & Ors [2009] QSC 326
PARTIES:	APM PROPERTY 3 PTY LTD ACN 120 616 346 (applicant) v CHRISTIAN BLONDEAU AS TRUSTEE FOR FRANCE AT LEISURE TRUST (first respondent) HAMBI PTY LTD ACN 075 762 293 AS TRUSTEE FOR THE HAMBI FAMILY TRUST (second respondent) PENKLIS INVESTMENTS PTY LTD ACN 123 909 893 AS TRUSTEE FOR THE PENKLIS INVESTMENTS TRUST (third respondent) GWR FINANCIAL SERVICES PTY LTD ACN 093 820 029 AND TAMLIN HOLDINGS PTY LTD ACN 009 117 195 (fourth respondent) HOME CARE HEALTH SERVICES PTY LTD ACN 010 041 273 AS TRUSTEE FOR L AZAR FAMILY TRUST (fifth respondent) INFINITE SYSTEMS GROUP PTY LTD ACN 096 749 745 (sixth respondent) ADLET PTY LTD ACN 079 342 733 AS TRUSTEE FOR FSPM TRUST (seventh respondent) F.J.M. PTY LTD ACN 009 682 697 AS TRUSTEE FOR THE CONRAD UNIT TRUST (eighth respondent) DAVJOH INVESTMENTS PTY LTD ACN 011 008 423 AS TRUSTEE FOR KASSOS OFFICE TRUST, ALLENS OFFICE TRUST AND SCLAVOS OFFICE TRUST (ninth respondent) NICHOLAS CHRIS NICOLAOU AS TRUSTEE FOR THE NICVAGAP DISCRETIONARY TRUST (tenth respondent) C & C GROUP PTY LTD ACN 078 182 126 AS TRUSTEE (eleventh respondent) INSIGHT GROUP (QLD) PTY LTD ACN 118 120 157 (twelfth respondent) ION CAPITAL INVESTMENT CORPORATION PTY LTD ACN 126 348 801 AS TRUSTEE FOR ION CAPITAL INVESTMENT UNIT TRUST (thirteenth respondent)
FILE NO:	BS 8561 of 2009
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	8 October 2009
DELIVERED AT:	Brisbane
HEARING DATE:	25 and 30 September 2009
JUDGE:	Mullins J
ORDER:	1. The originating application is dismissed 2. It is declared that each of the first to eleventh respondents has rescinded the option agreement described respectively in paragraphs 7 to 17 of the affidavit of Alec Leonard Spencer filed on 7 August 2009 pursuant to s 421(3) of the Environmental Protection Act 1994 or, alternatively, has cancelled the option agreement under s 213(6) of the Body Corporate and Community Management Act 1997 3. It is declared that the twelfth respondent has rescinded the contract referred to in paragraph 43 of the affidavit of Alec Leonard Spencer filed on 7 August 2009 pursuant to s 421(3) of the Environmental Protection Act 1994
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION ACTS AND CLAUSES – part 8 of chapter 7 of the Environmental Protection Act 1994 (Qld) – where owner of land proposed to reconfigure land into 24 lots under a community titles scheme – where owner entered into put and call option agreements with purchasers in relation to sale of proposed lots in the community titles scheme – where no notice was given to the purchasers prior to the entry into the option agreements that the particulars of the scheme land were recorded in the environmental management register – whether the owner was required to comply with s 421(2) of the Environmental Protection Act 1994 (Qld) prior to entering into the option agreements – whether s…