Begley v Fisigi P/L

SUPREME COURT OF QUEENSLAND

CITATION:

Begley v Fisigi P/L [2007] QCA 252

PARTIES:

TRACEY ELIZABETH BEGLEY
(plaintiff/respondent)
v
FISIGI PTY LTD ACN 109 242 284 AS TRUSTEE UNDER INSTRUMENT NO 708061715
(defendant/applicant)

FILE NO/S:

Appeal No 516 of 2007
DC No 1508 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

3 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2007

JUDGES:

McMurdo P, Holmes JA and Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal granted
2. Appeal dismissed
3. Applicant to pay respondent’s costs

CATCHWORDS:

CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER – MATTERS ARISING BETWEEN CONTRACT AND CONVEYANCE – CONDITIONS OF SALE – GENERALLY – where the applicant entered into a contract of sale with the respondent – where the disclosure plan did not comply with s 9(2) of the Land Sales Act 1984 (Qld) – where s 9(5) of the Land Sales Act provides for avoidance of the contract by written notice before the vendor gives the purchaser a registrable instrument of transfer  – whether the transfer document was capable of immediate registration in the land registry

Acts Interpretation Act 1954 (Qld), s 14A
District Court of Queensland Act 1967 (Qld), s 118
Duties Act 2001 (Qld)
Land Sales Act 1984 (Qld), s 9
Land Title Act 1994 (Qld), s 153

Cawood v Infraworth Pty Ltd [1990] 2 Qd R 114, considered
Kelly v Arkdev Pty Ltd; Kelly v Harling Queensland Pty Ltd [2005] QSC 318, considered

COUNSEL:

D A Quayle for the applicant
D J Thomae for the respondent

SOLICITORS:

Redchip Lawyers for the applicant
Bain Gasteen for the respondent

1. McMURDO P: I agree with Holmes JA that this application for leave to appeal should be granted but the appeal dismissed with costs.  Her Honour has set out the relevant facts, issues and statutory provisions in her reasons so that my own may be briefly stated. 

1. This appeal concerns the straightforward application of s 9(5) Land Sales Act 1984 (Qld) ("the Act") to the pertinent facts of this case. The appellant vendor, a property developer, entered into a contract to sell a proposed allotment to the respondent purchaser on 12 December 2004. The disclosure plan and disclosure statement required to be provided by the vendor or vendor’s agent to the purchaser under the Act did not comply with s 9. Under s 9(5) the purchaser therefore had a right to avoid the contract "by written notice given to the vendor before the vendor gives the purchaser the registrable instrument of transfer for the allotment". Under s 6 of the Act a "registrable instrument of transfer" relevantly means "a memorandum of transfer of the land in favour of that purchaser capable of immediate registration (subject to its being properly stamped under the Duties Act 2001) in the land registry". 

1. On 5 October…