Donna Marie Gallagher v Kym Boylan

[2012] HCASL 132

DONNA MARIE GALLAGHER

v

KYM BOYLAN

[2012] HCASL 132
B56/2011

1. On 7 May 2008, the applicant and the respondent entered into a put and call option deed in respect of certain land of which the respondent is the registered owner.  The applicant paid a call option fee and a deposit.  In October 2008, the respondent purported to exercise her "put option" under the deed, which required the applicant to purchase the land for an agreed price.  The applicant failed to complete.  In January 2009, the respondent's solicitors wrote to the applicant's solicitor purporting to terminate the contract for the applicant's breach.  In April 2009, the respondent resold the land.

2. The applicant commenced proceedings against the respondent in the Supreme Court of Queensland, seeking recovery of the call option fee, the deposit and interest.  The applicant contended that she had not been bound to purchase the land because the respondent had failed to comply with certain provisions of the Property Agents and Motor Dealers Act 2000 (Q) ("the Act"). Section 365(2)(c)(i) of the Act required the respondent to attach a warning statement to the deed. Section 365(2)(c)(ii) required the respondent or the respondent's agent to draw the warning statement and deed to the attention of the applicant or the applicant's agent. The respondent conceded that her solicitor had not drawn the applicant's attention to the warning statement, but claimed that the deed was not a contract to which s 365(2)(c)(ii) applied and that the applicant had, at any rate, waived her right to withdraw from the deed. The respondent counter-claimed for a declaration that the respondent had validly terminated the contract and for damages.

3. On 28 April 2011, Mullins J upheld the applicant's claim and dismissed the respondent's counter-claim.  Mullins J found that the deed was a relevant contract for the purpose of s 365(2)(c)(ii) and that the applicant had not waived her right to withdraw.

4. On 16 September 2011, the Court of Appeal of the Supreme Court of Queensland (Fraser and Chesterman JJA and Philippides J) allowed the respondent's appeal.  The respondent submitted, contrary to her concession in the Supreme Court, that she had in fact complied with the requirements of s 365(2)(c)(ii).  The Court of Appeal accepted that submission.  Fraser JA (with whom Chesterman JA agreed) found that a letter sent by the respondent's solicitor which referred to the "Put and Call Option document" referred to both the warning statement and the deed, sufficient to satisfy the requirements of s 365(2)(c)(ii).  Philippides J (with whom Chesterman JA also agreed) delivered separate and concurring reasons.

5. The applicant seeks special leave to appeal to this Court against the decision of the Court of Appeal.  The applicant submits that the Court erred, first, in permitting the respondent to argue a point that had been conceded at trial, and secondly, in finding that the respondent had complied with s 365(2)(c)(ii).

6. The Court of Appeal's findings are not attended by sufficient doubt to warrant a grant of special leave to appeal.  No question of principle falls for determination in this application.  Special leave is refused.

7. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.        

   
   
   
   

W.M.C. Gummow
15 August 2012 S.M. Kiefel