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Celik Developments Pty Ltd v Mayes

Celik Developments Pty Ltd v Mayes

Case [2005] QSC 224 19 August 2005

Breach of Contract

Repudiation & Termination

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SUPREME COURT OF QUEENSLAND

CITATION:

Celik Developments Pty Ltd v Mayes [2005] QSC 224

PARTIES:

CELIK DEVELOPMENTS PTY LTD ACN 093910671
(applicant)
v
DOUGLAS MALCOLM MAYES AND ROBYN JUNE MAYES
(respondent)

FILE NO/S:

BS No 6096 of 2005

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

11 August 2005

JUDGE:

White J

ORDER:

1. A declaration that the seller failed to comply with
s 213(5) of the Body Corporate and Community Management Act 1997 by failing to attach an information sheet in the approved form to the contract in relation to the buyer’s purchase of Lot 3004.

2.A declaration that the seller failed to comply with
s 213(5)(b) of the Body Corporate and Community Management Act 1997 before contracting with the buyer in relation to the buyer’s purchase of Lot 3004.

3.A declaration that the first community management statement as amended by the statement comprised in Sunland Group Limited’s letter of 1 October 2004 is inaccurate within the meaning of s 217 of the Body Corporate and Community Management Act 1997.

4.A declaration that by reason of that inaccuracy the buyer would be materially prejudiced if compelled to complete the contract within the meaning of s 217 of the Body Corporate and Community Management Act 1997.

5.A declaration that the contract in relation to the purchase of Lot 3004 has been lawfully terminated pursuant to s 213 and s 217 of the Body Corporate and Community Management Act 1997.

6.The seller refund the deposit paid by the buyer in the amount of $94,000 plus interest.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHAGE, BREACH, DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – ELECTION AND RESCISSION – STATUTE GIVING RIGHT TO AVOID CONTRACT – where contract for the sale of residential property under the Body Corporate and Community Management Act 1997 (“BCCM Act”) – where BCCM Act requires an information sheet to be placed immediately beneath the warning statement that must be attached as the first or top sheet of the contract – whether an approved form – where buyer terminating for want of compliance with the BCCM Act – whether appropriate product disclosure statement provided – where obligation to purchase a furniture package if the buyer wished to be part of a letting pool not disclosed – whether non-disclosure constituted material prejudice to the buyer

Body Corporate and Community Management Act 1997 (Qld), s 4, s 213, s 217, s 320, Form 14 Versions 1-4
Property Agents and Motor Dealers Act 2000 (Qld), s 365,
s 366

Devine Limited v Timbs [2004] QSC 024, cited
Golden Horseshoe Estates Co v R [1911] AC 480, cited
MNMD Developments Pty Ltd v Gerrard [2005] QCA 230, followed
Morgan v Thomas (1882) 9 QBD 643, cited

COUNSEL:

Mr P Woods for the applicant
Mrs K Magee for the respondent

SOLICITORS:

Adamsons for the applicant
Hoy McCormack for the respondent

A director of the…

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.

Continue reading Celik Developments Pty Ltd v Mayes

Details

AGLC: Celik Developments Pty Ltd v Mayes [2005] QSC 224
Case: [2005] QSC 224
Decision Date: 19 August 2005

CaseChat Overview and Summary

Celik Developments Pty Ltd, the seller of residential property, sought to enforce a contract against Mayes, the buyer, who terminated the contract due to alleged non-compliance with the Body Corporate and Community Management Act 1997 (BCCM Act). The dispute reached the court, which was required to decide several legal issues regarding the contract's validity and the buyer's right to terminate. The central issue was whether the seller's failure to comply with specific statutory requirements under the BCCM Act constituted a material breach, justifying the buyer's termination of the contract. Specifically, the court examined whether the seller's failure to attach an information sheet in the approved form and the provision of an inaccurate community management statement prejudiced the buyer.

The court held that the seller did not comply with the statutory requirements, as mandated by sections 213(5) and 213(5)(b) of the BCCM Act. The seller's failure to attach an information sheet in the approved form to the contract and the inaccuracy in the community management statement were deemed significant breaches. These breaches materially prejudiced the buyer, as the undisclosed information about a mandatory furniture package would have influenced the buyer's decision to enter into the contract. The court concluded that the seller's non-disclosure of material facts justified the buyer's termination of the contract.

As a result, the court issued several declarations confirming the seller's breaches of the BCCM Act and the material prejudice to the buyer. It also declared that the contract was lawfully terminated. The court ordered the seller to refund the deposit paid by the buyer, amounting to $94,000 plus interest. This decision underscores the importance of strict compliance with statutory disclosure requirements in real estate contracts and the consequences of failing to meet these obligations.

Orders

Orders of the court

1. A declaration that the seller failed to comply with

s 213(5) of the Body Corporate and Community Management Act 1997 by failing to attach an information sheet in the approved form to the contract in relation to the buyer’s purchase of Lot 3004.

2.A declaration that the seller failed to comply with

s 213(5)(b) of the Body Corporate and Community Management Act 1997 before contracting with the buyer in relation to the buyer’s purchase of Lot 3004.

3.A declaration that the first community management statement as amended by the statement comprised in Sunland Group Limited’s letter of 1 October 2004 is inaccurate within the meaning of s 217 of the Body Corporate and Community Management Act 1997.

4.A declaration that by reason of that inaccuracy the buyer would be materially prejudiced if compelled to complete the contract within the meaning of s 217 of the Body Corporate and Community Management Act 1997.

5.A declaration that the contract in relation to the purchase of Lot 3004 has been lawfully terminated pursuant to s 213 and s 217 of the Body Corporate and Community Management Act 1997.

6.The seller refund the deposit paid by the buyer in the amount of $94,000 plus interest.

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.

Citations

AGLC Citation

Celik Developments Pty Ltd v Mayes [2005] QSC 224

Most Recent Citation

South Esplanade Developments Pty Ltd v Astill [2007] SADC 24

Cases citing this decision · 9 of 9 shown

Tang v Body Corporate for Greenly Gardens CTS 41566
[2019] QCAT 207 Para 10

…he BCCM Act and the PAMD Act are the same – consumer protection – and call for an approach requiring strict compliance with the BCCM Act.[16] [15][2005] QSC 224. [16]Ibid [24].…
Hannah v TW Hedley (Investments) Pty Ltd
[2010] QCA 256 Para 1

…appears to be a technical contravention that did not occasion the buyer any material disadvantage.[12] [8] Celik Developments Pty Ltd v Mayes [2005] QSC 224 at [24]. [9]The Act, s 4(f). [10] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381. [11] Acts Interpretation Act 1954 (Qld)…
Marchesi v Viridian Noosa Pty Ltd
[2010] QSC 324

…] MNM Developments Pty Ltd v Gerrard [2005] 2 Qd R 515, 519, 520, 521 at [16], [21], [30]-[31]; [2005] QCA 230 and Celik Developments Pty Ltd v Mayes [2005] QSC 224.…
Wilson v Mirvac Queensland Pty Ltd
[2010] QSC 87 Para 1

…tute material prejudice. However, material prejudice was not relied on in that case and his Honour did not discuss the test for its determination. [9][2005] QSC 224. [10][2008] 2 Qd R 249 (see A).…
Lee v Surfers Paradise Beach Resort Pty Ltd
[2008] QCA 29 Para 1

…not established an entitlement to cancel the contract under s 217. [1]See Lee & Anor v Surfers Paradise Beach Resort Pty Ltd [2007] QSC 93, [28]. [2][2005] QSC 224, [37]; BS No 6096 of 2005…
Irvine v The Prosperity Group
[2007] QDC 260 Para 1

…Counsel for the applicant referred me to Celik Developments Pty Ltd v Mayes [2005] QSC 224 and M & M Developments Pty Ltd v Gerrard [2005] QCA 230. It is certainly true, as stated in the Addendum to Outline of Argument, that the object of the Act is consumer protection. I have considered these two cases, and the…
Lee v Surfers Paradise Beach Resort P/L
[2007] QSC 93 Para 1

…terially prejudiced if compelled to complete the contract. Her Honour concluded that there had been a breach of s 217 of the BCCM Act . [25][2005] QSC 224. [26] Celik [2005] QSC 224., [30].…
South Esplanade Developments Pty Ltd v Astill
[2007] SADC 24 Para 4

…v Enge [2006] QCA 213); MNM Developments Pty Ltd v Gerrard [2005] 2 Qd R 515, 519-520 at [16]-[17], [20]-[21] and Celik Developments Pty Ltd v Mayes [2005] QSC 224 at [22]. The fact that specific provision was included in s 369 of the Act for the waiver, and in s370 for the shortening, of the cooling-off period…
Blackman v Milne
[2006] QSC 350 Para 1

…nge [2006] QCA 213); MNM Developments Pty Ltd v Gerrard [2005] 2 Qd R 515, 519-520 at [16]-[17], [20]-[21] and Celik Developments Pty Ltd v Mayes [2005] QSC 224 at [22].…

View all 9 citing cases →

Cases cited in this decision · 4 of 4 shown

MNM Developments Pty Ltd v Gerrard
[2005] QCA 230 Para 1

…consumer protection. The requirements of s 366 of the PAMD Act were construed strictly by the Court of Appeal in MNMD Developments Pty Ltd v Gerrard [2005] QCA 230. The Chief Justice concluded at para 16…
Devine Limited v Timbs
[2004] QSC 024 Para 1

…rotection for owners and intending buyers of lots included in a community titles scheme, s 4(f). See discussion by Helman J in Devine Limited v Timbs [2004] QSC 024. So far as the arguments advanced on this application are concerned, the objects of the BCCM Act and the PAMD Act are the same – consumer protection…
Morgan v Thomas
(1882) 9 QBD 643 Para 1

…ilment of all the conditions that it joins together, by force of context “and” may need to be read as “or”, Morgan v Thomas (1882) 9 QBD 643 per Jessel MR, Golden Horseshoe Estates Co v R [1911] AC 480 at 488. It is the context in which “and” appears which will determine the construction. Section 212 of the BCCM Ac…
[1911] AC 480
[1911] AC 480 Para 1

…context “and” may need to be read as “or”, Morgan v Thomas (1882) 9 QBD 643 per Jessel MR, Golden Horseshoe Estates Co v R [1911] AC 480 at 488. It is the context in which “and” appears which will determine the construction. Section 212 of the BCCM Act permits the buyer to cancel the contract if there has been…

Legislation cited in this decision · 3

Body Corporate and Community Management Act 1997 (Qld)
4 2 mentions
Property Agents and Motor Dealers Act 2000 (Qld)
365 2 mentions (from Para 1)
Land Sales Act 1984 (Qld)
1 mention (from Para 1)

CITATION:	Celik Developments Pty Ltd v Mayes [2005] QSC 224
PARTIES:	CELIK DEVELOPMENTS PTY LTD ACN 093910671 (applicant) v DOUGLAS MALCOLM MAYES AND ROBYN JUNE MAYES (respondent)
FILE NO/S:	BS No 6096 of 2005
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	11 August 2005
JUDGE:	White J
ORDER:	1. A declaration that the seller failed to comply with s 213(5) of the Body Corporate and Community Management Act 1997 by failing to attach an information sheet in the approved form to the contract in relation to the buyer’s purchase of Lot 3004. 2.A declaration that the seller failed to comply with s 213(5)(b) of the Body Corporate and Community Management Act 1997 before contracting with the buyer in relation to the buyer’s purchase of Lot 3004. 3.A declaration that the first community management statement as amended by the statement comprised in Sunland Group Limited’s letter of 1 October 2004 is inaccurate within the meaning of s 217 of the Body Corporate and Community Management Act 1997. 4.A declaration that by reason of that inaccuracy the buyer would be materially prejudiced if compelled to complete the contract within the meaning of s 217 of the Body Corporate and Community Management Act 1997. *5.A declaration that the contract in relation to the purchase of Lot 3004 has been lawfully terminated pursuant to s 213 and s 217 of the Body Corporate and Community Management Act* 1997. 6.The seller refund the deposit paid by the buyer in the amount of $94,000 plus interest.**
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHAGE, BREACH, DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – ELECTION AND RESCISSION – STATUTE GIVING RIGHT TO AVOID CONTRACT – where contract for the sale of residential property under the Body Corporate and Community Management Act 1997 (“BCCM Act”) – where BCCM Act requires an information sheet to be placed immediately beneath the warning statement that must be attached as the first or top sheet of the contract – whether an approved form – where buyer terminating for want of compliance with the BCCM Act – whether appropriate product disclosure statement provided – where obligation to purchase a furniture package if the buyer wished to be part of a letting pool not disclosed – whether non-disclosure constituted material prejudice to the buyer Body Corporate and Community Management Act 1997 (Qld), s 4, s 213, s 217, s 320, Form 14 Versions 1-4 Property Agents and Motor Dealers Act 2000 (Qld), s 365, s 366 Devine Limited v Timbs [2004] QSC 024, cited Golden Horseshoe Estates Co v R [1911] AC 480, cited MNMD Developments Pty Ltd v Gerrard [2005] QCA 230, followed Morgan v Thomas (1882) 9 QBD 643, cited
COUNSEL:	Mr P Woods for the applicant Mrs K Magee for the respondent
SOLICITORS:	Adamsons for the applicant Hoy McCormack for the respondent