Dunworth v Mirvac Qld P/L
[2010] QSC 472
•10 December 2010
SUPREME COURT OF QUEENSLAND
CITATION:
Dunworth v Mirvac Qld P/L [2010] QSC 472
PARTIES:
MARIS ANNE DUNWORTH
(plaintiff)
v
MIRVAC QUEENSLAND PTY LIMITED ACN 060 411 207
(defendant)
FILE NO:
BS4514/09
PARTIES:
MARIS ANNE DUNWORTH
(plaintiff)
v
MIRVAC QUEENSLAND PTY LIMITED (ACN 060 411 207)
(defendant)
FILE NO:
BS4712/09
DIVISION:
Trial
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court, Brisbane
DELIVERED ON:
10 December 2010
DELIVERED AT:
Brisbane
HEARING DATES:
17, 18 May 2010, 28, 29 July 2010
JUDGE:
Margaret Wilson J
ORDER:
In proceeding 4514 of 2009:
It is ordered that:
1. The claim be dismissed.
It is ordered on the counterclaim that:
2. The plaintiff specifically perform and carry into execution a contract of sale dated 25 June 2007 between the plaintiff and the defendant in respect of real property described as unit and car park 3301 and storage space 105, Tennyson Reach, Tennyson in the State of Queensland being Lot 3301 on SP195376 in the County of Stanley, Parish of Yeerongpilly ("the contract");
3. The completion date for the contract shall be 8 February 2001;
4. The consideration payable by the plaintiff for completion of the contract shall be the contract price of $2,166,710 plus(a) interest pursuant to clause 5 of the contract in the sum of $567,415.42; and
(b) outgoings pursuant to clause 4 of the contract in an amount to be agreed or as otherwise ordered by the Court;5. Settlement of the contract shall take place at the offices of the solicitors for the defendant at a time notified to the solicitors for the plaintiff but in any event prior to 5 p.m. on 8 February 2011;
6. On settlement of the contract the defendant will return to the plaintiff any bank guarantee given by the plaintiff to the defendant;
7. There be liberty to apply;
8. The plaintiff shall make written submissions on the costs of the claim and counterclaim by 4 p.m. on 15 December 2010;
9. The defendant shall make written submissions in reply by 4 p.m. on 16 December 2010; and10. The proceeding be listed for decision on costs at 4 p.m. on 17 December 2010.
In proceeding 4712 of 2009:
It is ordered that:
1. The claim be dismissed;
2. The plaintiff make written submissions on costs by 4 p.m. on 15 December 2010;
3. The defendant make written submissions in reply by 4 p.m. on 16 December 2010; and4. The proceeding be listed for decision on costs at 4 p.m. on 17 December 2010.
CATCHWORDS:
TRADE AND COMMERCE – TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – MISLEADING OR DECEPTIVE CONDUCT GENERALLY – GENERALLY – where the defendant agreed to sell to the plaintiff an apartment in a building to be constructed on the riverfront – where the plaintiff alleges that the plaintiff made certain representations as to the height, privacy and security of the apartment and plans for the land adjoining the apartment – whether there were statements made in contravention of s 52 or s 53A of the Trade Practices Act 1974 (Cth)
REAL PROPERTY – TORRENS TITLE – SURVEYS, DEPOSITED PLANS ETC – where community management scheme ("CMS") noted and endorsed by planning body – where CMS amended prior to being recorded by Registrar of Titles – whether CMS required to be re-noted and re-endorsed by planning body pursuant to Body Corporate and Community Management Act 1997 (Qld) s 60 – whether community titles scheme validly established
Acts Interpretation Act 1954 (Qld) s 14B
Body Corporate and Community Management Act 1997 (Qld) ss 24, 37, 44, 52, 54, 57, 60, 66, 214, 269A
Land Title Act 1994 (Qld) ss 30, 31, 37, 49, 115L, 115K, 156
Reprints Act 1992 (Qld) s 43Trade Practices Act 1974 (Cth), ss 52 and 53A
Watson v Foxman (1995) 49 NSWLR 315, cited
COUNSEL:
RJ Douglas SC and CJ Murdoch for the plaintiff
PH Morrison QC and J Chapple for the defendant
SOLICITORS:
Hyland Lawyers for the plaintiff
ClarkeKann for the defendant
MARGARET WILSON J: The defendant is the developer of the Tennyson Reach Development in Brisbane. It is a staged residential development, by which there will ultimately be six high rise apartment complexes accommodating almost 400 residential units and associated infrastructure and amenities on riverfront land adjoining the Queensland Tennis Centre. Stage 1 involved the construction of two buildings called Softstone and Lushington, and the establishment of a community titles scheme under the Body Corporate and Community Management Act 1997 (Qld) ("the BCCM Act").
By a contract in writing dated 25 June 2007[1] the plaintiff agreed to buy an apartment in Softstone from the defendant "off the plan" for $2.155 million. She provided a bank guarantee in the sum of $215,500 in lieu of a deposit. On 28 April 2009 the defendant's solicitors notified the plaintiff's solicitors that the community titles scheme had been established, and called for completion of the contract on 12 May 2009.
[1]The contract was signed by Mrs Dunworth on 22 June 2007. It was signed and dated by the vendor on 25 June 2007.
Proceeding 4514/09
The plaintiff commenced proceeding 4514/09 on 29 April 2009, alleging that the defendant engaged in conduct in breach of the Trade Practices Act 1974 (Cth) and seeking an order declaring the contract void. On 11 May 2009 the Court granted an interlocutory injunction restraining the defendant from terminating the contract and presenting the bank guarantee for payment. The defendant has counterclaimed for specific performance.
Proceeding 4712/09
In proceeding 4712/09 (commenced on 6 May 2009) the plaintiff seeks orders declaring that the recording of the first community management statement under the BCCM Act was invalid, that the community titles scheme was not validly established, and that the notification by the defendant to the plaintiff of 28 April 2009 that the community titles scheme was established was of no force and effect.
The facts
The plaintiff and her husband resided in an "old Queenslander" house in the western suburbs of Brisbane. Their children had grown up, and they were wanting to "down-size". Mr Dunworth was a businessman, who had been involved in comparatively small-scale real estate developments on the Sunshine Coast. The defendant was a public company which had undertaken a number of large, high profile developments. Mr Dunworth knew one or more of the senior executives of the defendant, and he had a high regard for the quality of their developments.
The defendant sent promotional material to the Dunworths, who expressed interest in the development, and nominated solicitors to act on their behalf. On 15 June 2007 the defendant sent those solicitors a draft contract and disclosure information. Both Mr and Mrs Dunworth read the material. She selected apartment 3301 as the only one in which she was interested. It was on ground level at the north-eastern corner of the Softstone building. It had a large outdoor living area and wrap around balcony on three sides.
Mr and Mrs Dunworth paid $5,000 into the trust account of the defendant’s solicitors for the right to an on-site appointment with a representative of the defendant to discuss the development and enter into a contract to purchase an apartment before they were offered to sale to the public. The $5,000 was to be refunded or deducted from the purchase price if they purchased an apartment.
The defendant scheduled "pre-release" appointments with potential purchasers who had paid $5,000 at its on-site sales office over four days commencing Friday 22 June 2007. Eight sales consultants were deployed to have meetings with the various potential purchasers, each of about one and a half hours' duration. One of the sales consultants was Ms Angela Patch, who had been working for the defendant since 1999. In June 2007 she was working on another project, Ephraim Island at the Gold Coast, but seconded to the Tennyson Reach Development for the four days of the pre-release meetings.
The first day, Friday 22 June 2007, was extremely busy. The atmosphere in the sales office was frenetic, with people anxious to secure apartments before they were released to the public. Mr and Mrs Dunworth’s appointment was at 11.40 am with a sales consultant named Paul Sanders. When they arrived, they met with Ms Patch rather than Mr Sanders. After they had spoken with her for some time, another employee of the defendant, Mr Iain Knight, drove them to a trestle tower elsewhere on the site. They ascended the tower to the first level with Mr Knight. Subsequently he drove them back to the sales office, where they had a further conversation with Ms Patch. The plaintiff executed the contract to purchase apartment 3301 before they left.
The apartment as constructed
The relevant part of the site was reconfigured as a community titles scheme pursuant to BCCM Act. The scheme was established on 27 April 2009.
Softstone is the multi-level tower at the eastern end of the development, and Lushington is immediately behind it to the west. Softstone’s northerly aspect is to the river. The riverbank is lined with mangroves. There is a concreted pathway between the northern side of the building and the river. Crown land lies to the east of the building; there is an easement over part of it, including the part immediately adjacent to the eastern end of the building, in favour of the Brisbane City Council, which affords a public pedestrian and bicycle pathway. The pathway along the riverbank connects with the pathway over the easement. Entrance to the north-eastern end of the building is on the southern side, up a flight of five steps. The entrance door to apartment 3301 is at the top of the stairs to the right.
Apartment 3301 is on the north-east corner of Softstone. It wraps around the end of the building, with outlooks to the north, east and south. There is another apartment immediately behind it to the west. The apartment is on the ground level of the building. There are two basement levels for carparking below it, and eight levels of apartments above it. Each slab is 3.3 metres below the slab above it.
The land slopes down towards the river. The north-eastern corner of the apartment’s balcony is 2.49 metres above the ground. The northern elevation is 2.77 metres above ground at its highest point – which is at the north-western end of the balcony. The south-eastern corner of the apartment is 1.29 metres above ground.[2]
[2]These ground levels were taken at the base of the wall and the balcony levels were taken at the tile floor. See drawing Z0004 "Balcony Level Survey", page 1090 of the trial bundle.
Representations
The plaintiff alleges that it was in reliance on certain representations made by Ms Patch and Mr Knight that she entered into the contract. She alleges four express representations and a fifth implied representation, and that each of them was false, misleading and deceptive or likely to mislead or deceive in contravention of s 52 and/or s 53A of the Trade Practices Act 1974 (Cth):
"7. (a) On 22 June, 2007 the plaintiff attended at the Tennyson Reach Development display centre and spoke with Patch;
(b)During that conversation Patch represented to the plaintiff that the Apartment would be around 3 metres above the Site land below the Apartment.
Particulars
(i)the said representative was made orally by Patch;
(ii)was in response to a question from the plaintiff to the following effect:
'How high will the unit be off the ground?' and
(iii)Patch stated to the effect that the plaintiff could obtain an accurate idea as to the height of the Apartment because the defendant had a trestle tower system on site which would physically give the plaintiff the height the Apartment would be above the land below the Apartment.
('the first representation')
8.(a) Subsequently, on 22 June, 2007, the plaintiff was driven in a vehicle provided by the defendant to that part of the Site upon which the Apartment was to be built.
(b)That vehicle was driven by a young man (whom the plaintiff cannot identify without interlocutory assistance) who also was and acted as an agent of the defendant with respect to negotiating sale of the Lot (including the following matters).
(c)The young man identified to the plaintiff that part of the Site where the Apartment was to be built in the Tennyson Reach Development.
(d)A trestle tower had been assembled at that location.
(e)The young man directed the plaintiff up a set of stairs to the trestle tower and indicated a particular level as being the height of the Apartment above the land below the Apartment and indicated that as the level at which the Apartment would be above the land below the Apartment.
(f)That indication in those circumstances was a representation that the said Apartment would be above the said bikeway/walkway by approximately 3.3 metres.
(g)Further or in the alternative to (f), the young man there told the plaintiff that the level at which the Apartment would be above the land below the Apartment was 3.3 metres.
('the second representation')
Particulars
The second representation was made:
(a)orally; and further or in the alternative,
(b)physically by the conduct aforesaid.
9. Whilst with the plaintiff in the trestle tower, and in response to a question from the plaintiff about the bushland to the east of the Apartment, the young man orally represented to the plaintiff that the bushland that adjoined the Apartment to the east was:
(a)government land; and
(b)would remain as bushland.
('the third representation')
10.(a) On her return to the site office after that inspection with the young man, the plaintiff met again with Patch.
(b)During that second meeting Patch stated to the effect that if the plaintiff had been told by the young man that the height of the Apartment was 3.3 metres it was correct.
(c)That statement by Patch was an oral representation that the height of the Apartment was to be 3.3 metres above the land below the Apartment.
('the fourth representation')
11. Further, by the first, second, third and fourth representations, the defendant also impliedly represented that:
(a) no bikeway/walkway would extend along the eastern side of the Apartment;
(b)the bushland that adjoined the Apartment to the east would remain;
(c)the Apartment would be:
(i)private;
(ii)secure; and
(iii)in a secluded bushland setting.
(the implied representations')."[3]
[3]Statement of claim in proceeding 5414/09 filed 29 April 2009 (court document no 1) paras 7-11.
The first representation
As at 22 June 2007 neither Softstone nor Lushington had been constructed. The building envelopes had been set out by surveyors – that is, stakes had been placed in the ground at the appropriate corners (taken from computer-aided design drawings supplied by the defendant) and the stakes had been connected by fluorescent tapes. The lift cores were also marked out by stakes joined by blue tapes. This had been done principally so that a layperson could gain some appreciation of where the buildings would be on the land by walking round their perimeter.
A five-level trestle tower had been erected about halfway between Softstone and Lushington, to give prospective purchasers some idea of the anticipated river views from apartments on levels 1 to 5 of the buildings. The separation between the various platforms was approximately 3.3 metres. To the east of the tower there were trees and long grass. Tapes joining the survey stakes were in the vegetation. The adjacent land to the east was Crown land. There were mangroves across the foreshore of the site area.
When Mr and Mrs Dunworth arrived at the site office that day, they were introduced to Ms Patch. They looked briefly at the model of stage 1 which was on display there. Then they sat down and had a "three-way conversation" which lasted about 15 to 20 minutes.
At trial, Ms Patch had no specific recollection of their conversation, but she accepted that it occurred, as she witnessed the execution of the contract by the plaintiff that day.
I accept that the Dunworths acted as an harmonious team in their inquiries about the apartment and in satisfying themselves that it would be a suitable home for them. He approached the meeting from the perspective of someone experienced in property development and contracts, and she from the perspective of a wife, mother and grandmother who was essentially a homemaker. I accept that before the meeting the plaintiff had identified the subject apartment as the only one in which she was interested. I accept that her husband was interested in the elevation of the apartment, and that before attending the site that day, he had looked through the material that had been provided and observed that there was no elevation plan.
I am satisfied that Ms Patch produced some brochures, and the plaintiff pointed to the apartment in which they were interested. According to the plaintiff, her husband said that they wanted to establish the height of the apartment above the ground, and Ms Patch responded –
"It’s around three metres.
But if you would like a more accurate account, we can arrange for a driver to take you to a temporary trestle that we have erected – to a temporary tower."
Mr Dunworth’s evidence was that the plaintiff asked Ms Patch what the height of the apartment would be, but he could not remember the response. He told Ms Patch he would like to see such a plan, and she replied that there wasn’t one; she said that a trestle tower had been built so that people could identify the height of their unit and the view from their unit.
Ms Patch was an experienced sales consultant. Her commission was a flat amount per sale, regardless of the purchase price of the particular apartment. She was astute, and aware of potential pitfalls in selling off a plan. I accept that she had an ingrained practice of qualifying her responses to purchasers' questions with expressions such as "approximately" or "an indication". She did not know what an elevation plan was, and had she been asked for one, she would have had to check with someone in the defendant’s development division. While there were detailed design drawings showing the elevation above ground level of the apartment along its perimeter, she was unaware of them. She understood that the elevation of the sales office was about 60 centimetres above the height of the floor tiles in the courtyard apartments. She knew that a trestle tower had been erected. In her evidence in chief she said –
"It was to get an idea of the heights from a different – like, the views from the different levels."
The examination in chief continued –
"Okay. Well, said two things. Get an idea of the height or views from different levels. Did you understand anything about the precise heights of the level – levels on the tower? – not precisely, it was just an – you know, an indicative – just to get an idea.
All right. Now it’s suggested that you said that the trestle would give an accurate idea of height. What do you say to that? – Well, to say 'accurate', it would go against what I would say in a normal course of selling. I would probably say – you know, probably say something like, 'Get an idea of the view,' or, 'the height,' or 'get a feel for it,' or, 'an indication.' I don't believe I would have said 'accurate'."
Ms Patch arranged for Mr Knight to take Mr and Mrs Dunworth to the trestle tower.
I accept that Mr Dunworth told Ms Patch they wanted to establish the height of the apartment above the ground. I accept that she replied that it was around 3 metres. While she may well have said they could gain more of an idea of the elevation by visiting the trestle tower, I am not persuaded that she used the adjective "accurate", as it would have been contrary to her established modus operandi to do so. I note, also, that Mr Dunworth did not say she used the word "accurate".
In any event, the plaintiff did not rely on what Ms Patch said before they went to the trestle tower. When asked in re-examination whether anything Ms Patch said before they went to the tower played any role in her decision to purchase, she answered –
"I don’t think so, no."
Mr Dunworth’s evidence was that they relied on what they were told at the trestle tower, but –
"Patch didn’t tell us that much at all."
The second representation
In June 2007 there were a number of divisions within the defendant’s operations. The development division was responsible for facilitating the entire development process. It overarched the construction division, the sales and marketing division and the customer relations division. There was also an autonomous design division.
Mr Knight was an impressive witness – an intelligent young man, careful and precise in his response to questioning, and unshaken in cross-examination. His presentation was quite detached and professional.
He obtained a Bachelor of Environmental Planning from Griffith University in 2004, and began working with the defendant in 2006. He was employed in the development division working on the Tennyson Reach Development. In June 2007 he was an assistant development manager. His primary role was to assist the development manager, and in that regard he was principally concerned with the town planning side of the development, as well as preparing minutes of meetings and facilitating the development in its entirety. He compiled the sales manual by collating material from the defendant’s various divisions into a concise document. But he played no part in sales or marketing, and he never worked in the construction division. He was never a project manager.
Mr Knight was designated to drive prospective purchasers and sales consultants to the trestle tower over the four days of the pre-release period. It was the sales consultant’s role, not his, to engage with the prospective purchasers and to ascend the tower with them; he would remain at ground level. He could not recall any occasion when he drove prospective purchasers to the trestle tower without a sales consultant being present, but he did not discount the possibility that it had occurred. He agreed that had this occurred, he would have endeavoured to be responsive to questions asked by the prospective purchasers, and he would have ascended the tower with them.
Although he had no involvement in the design or construction of the trestle tower, Mr Knight knew something about its dimensions and purpose. He knew that the platforms were approximately 3.3 metres apart. I accept his evidence of having no recall of the drop from the lowest platform to the ground below. He explained that the land surrounding the trestle tower undulated with variations of between one and three metres. He knew that the defendant was seeking approval from the requisite authority to thin the mangroves and lift their canopy. He knew that the land to the east of the development was Crown land, and that there was to be an easement over part of it in favour of the Brisbane City Council for a bicycle path.
Mr Knight had no specific recollection of Mr and Mrs Dunworth.
According to Mr Dunworth, Mr Knight introduced himself as a project manager. Mr Dunworth said this resonated with him because he acted as a project manager and their son was a project manager with Lend Lease, and he thought Mr Knight would "have all the detail." Of course, Mr Knight was not a project manager; he had no reason to tell them that he was, and I do not accept that he did so.
According to Mr and Mrs Dunworth, Mr Knight told them that the trestle tower was positioned on the location of their apartment. In fact, it was positioned between the sites of Softstone and Lushington, as Mr Knight well knew; he had no reason to tell them that it was on the location of their apartment and I do not accept that he did so.
According to Mr and Mrs Dunworth, the three of them ascended to the first level platform in the tower, which Mr Knight identified as the level of their unit. I observe that is consistent with his testimony that if he drove prospective purchasers to the trestle tower unaccompanied by a sales consultant, he would ascend the tower with them. The plaintiff gave evidence of her husband asking –
"So, how high is this above the ground?"
and Mr Knight replying –
"Well, this is 3.3 metres."
She understood that the height of the front balcony would be 3.3 metres.
"I knew from the plan there wasn’t a step down in the balcony, so I assumed that the eastern side would just continue around…..We were on level ground at the time and it was all very level. It was my – that’s my impression, it was all very level."
At another point she said –
"I felt the bike paths would be 3.3 metres below our living."
Mr Dunworth gave evidence of asking –
"Is this the level of our unit… what's the height of our unit above ground level?"
and Mr Knight replying –
"3.3 metres."
Mr Dunworth said he looked himself and calculated it was about 11 feet.[4] He believed Mr Knight was telling him the apartment in which they were interested would be 3.3 metres above the ground. In cross examination he said the land was quite level, and he assumed that the balcony of the apartment, whether on the front or on the east, was 3.3 metres above the ground.
[4]3.35 metres.
Mr and Mrs Dunworth's evidence that the land was quite level is inconsistent with objective facts. Softstone and Lushington were to be constructed on riverfront land – land which naturally sloped down to the river. I accept Mr Knight's evidence that the undeveloped land undulated a little.
I do not accept the Dunworths' evidence that Mr Knight told them that the level 1 platform was 3.3 metres above the ground. Nor did he tell them that the apartment would be 3.3 metres above the ground below. Mr Dunworth may well have made his own estimate of about 11 feet. But they had no basis to assume from any estimate of 3.3 metres or 11 feet (whether it was Mr Dunworth's or Mr Knight's) that the elevation of the apartment would be uniformly of that measurement or any other, as the balcony ran from the north-west to the north-east, then turned along the eastern perimeter, and turned again along the southern perimeter. Nor did the plaintiff have any basis to assume that the apartment would be uniformly 3.3 metres above the bicycle paths (along the northern side of the building, and then along the easement to the east).
In short, the plaintiff has not proved that the second representation alleged in the statement of claim was made.
The third representation
According to Mr and Mrs Dunworth, there was further conversation between them and Mr Knight after they descended from the platform. The plaintiff inquired about the land to the east.
On the plaintiff’s version, Mr Knight replied –
"That's government land. That's not Mirvac land. We won't be building on that. That won't be built on. That is government land."
She asked –
"So, these trees will remain?"
And Mr Knight replied –
"Yes."
On Mr Dunworth's version, Mr Knight's response was that the land was not owned by the defendant, it was government land and it would not be developed. In cross examination it was put to him that there could not be bushland in the position of the bike path. Mr Dunworth responded –
"Well, there could. The bike path is only a maximum of two and a half metres wide. You don't eliminate all vegetation to put a bike path in, and I know that a lot of the time the council is very keen for you to retain vegetation. In this case, they didn't because they used it as a building site."
Mr Knight may well have said that the land was government land, and that the defendant would not be developing it. However, it would have been extraordinary for him to have said that it would not be developed and that the trees would remain. Those were matters beyond the defendant's control. For him to have made the alleged representation would have been quite out of character. I am not satisfied that he did so.
The plaintiff has not proved the third representation alleged in the statement of claim.
The fourth representation
According to the plaintiff, they returned to the sales office, where Ms Patch asked –
"Well, did you find that constructive?"
They responded in the affirmative, whereupon Ms Patch asked what height they were given. One of them said 3.3 metres. Ms Patch said –
"Well, if he said that, that's what it is."
Mr Dunworth gave evidence to similar effect.
Even if this conversation occurred, it was not a representation that the height of the apartment was to be 3.3 metres above the ground below it. It could not have been a representation to that effect unless Mr Knight had said that it would be 3.3 metres above the ground – and I am not satisfied that he did so.
The plaintiff has not proved the fourth representation alleged in the statement of claim.
The implied representations
The plaintiff alleges that by the first, second, third and fourth representations the defendant made certain implied representations about the adjoining land and the privacy and security of the apartment. No such inference could be drawn from Ms Patch's saying that the height of the apartment would be around 3 metres above ground level, and the second, third and fourth representations have not been proved.
It follows that the implied representations have not been proved.
Mr and Mrs Dunworth’s credit
I do not think that either Mr or Mrs Dunworth was deliberately dishonest in giving evidence, but I do think they were unreliable.
Selling the home in which they had raised their children and moving to an apartment was a very significant milestone in their lives together. They wisely did not rush into the move, and looked for a suitable apartment for some time before choosing one in the Tennyson Reach Development. They respected each other's concerns, and both had to be comfortable with the decision to purchase. Although the purchase was to be in the plaintiff's name, if either of them had had lingering concerns about living in the apartment, she would not have signed the contract.
Security and privacy were important to the plaintiff. She was not interested in living in a high level apartment, and was attracted by the thought of filtered views of the river through mangroves on the riverbank. She relied on her husband to be satisfied about the contract she would sign.
I accept that her husband was concerned about the elevation of the apartment, but I do not accept his evidence or hers about what they were told at the trestle tower. They may well have misunderstood Mr Knight’s responses to their questions, or subconsciously put a gloss on what he said.
In Watson v Foxman[5] McClelland CJ made some pertinent observations upon the difficulties of proof facing a party relying on oral communications as the foundation of causes of action based on s 52 of the Trade Practices Act 1974 (Cth). His Honour said –
"Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court 'must feel an actual persuasion of its occurrence or existence'. Such satisfaction is 'not … attained or established independently of the nature and consequence of the fact or facts to be proved' including the 'seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding': Helton v Allen.[6]"
[5](1995) 49 NSWLR 315 at 318-319.
[6](1940) 63 CLR 691 at 712.
There was a competitive tension in the atmosphere at the sales office that day. Apartments were selling fast, before they were released for sale to the general public.
When they returned from the trestle tower, Mr and Mrs Dunworth talked together for some time, working through various issues, before making the final decision. For the plaintiff, the deciding factor was that she would be living in a charming environment surrounded by trees. She was quite happy with the proposed layout of the apartment and the "good feeling" she got at the trestle tower.
In February 2009 the plaintiff visited the apartment, which was still under construction. She told the court –
"If you could explain those to her Honour in terms of what you observed that day? – Well, I was in the apartment looking through the glass door, looking through the glass balustrade at the workmen working right there, landscaping, and we all seemed to be on the same level, and it just looked so bare when I looked towards the east I felt that a considerable number of trees had been taken out and it was all – I felt very obvious, I felt very visible, I felt vulnerable and I was on show and I could see absolutely everything that was happening outside the apartment."
She was concerned at what she perceived to be a lack of height, security and privacy and the clearing of vegetation and criss-crossing of paths on the eastern side.
Mr Dunworth also visited the apartment at about that time. He was concerned that the elevation to the east was negligible, and that anybody walking along the path could see into the apartment and easily scale the balcony. He observed that foliage had been cleared.
Almost two years had passed since the pre-release day. The apartment as constructed, or nearly so, was not as they had envisaged. They were understandably disappointed and distressed.
However, their disappointment cannot be sheeted home to the defendant. The claim in proceeding 4514/09 should be dismissed. The defendant is entitled to proceed on its counterclaim for specific performance.
Community management statement
Pursuant to s 24 of the BCCM Act –
"24 Establishment of community titles scheme
(1) A community titles scheme is established by –
(a) firstly, the registration, under the Land Title Act, of a plan of subdivision for identifying the scheme land for the scheme; and
(b) secondly, the recording by the registrar of the first community management statement for the scheme.
(2)A community titles scheme is established when the first community management statement for the scheme is recorded.[7]"
[7]Reprint 4C, effective 1 July 2008. Unless otherwise noted, references to the BCCM Act are to Reprint 4C in force when contract completion was called for on 12 May 2009. See s 66 for the requirements for a community management statement.
The registration of the plan of subdivision triggers the creation of the individual lots in the scheme.[8] Indefeasible title for each lot is created on the recording of the particulars of the lot in the freehold land register.[9]
[8]Land Title Act 1994 (Qld), s 49. References to the Land Title Act are to Reprint 9C, effective 23 February 2009, the reprint in force when contract completion was called for on 12 May 2009.
[9]Land Title Act 1994 (Qld) s 37.
A community management statement ("CMS") takes effect when it is recorded by the Registrar of Titles under part 6A division 4 of the Land Title Act 1994 (Qld).[10]
[10]See s 115L(3).
A request to record a CMS must be lodged with the Registrar of Titles and the CMS must be deposited with the request.[11]
[11]Land Title Act 1994 (Qld) s 115K(1) (a) and (b).
The request is an "instrument" under the Land Title Act 1994 (Qld), but the CMS is not.[12] The registrar must register the request, which becomes part of the freehold land register.[13] The CMS is recorded, but not registered. The registrar must give it a unique number and record a reference to it on the indefeasible title for each lot created by the community titles scheme and the common property.[14] The CMS has no effect until it is recorded,[15] and the scheme is not established until that occurs.[16]
[12]Land Title Act 1994 (Qld) s115K(2) and (3).
[13]Land Title Act 1994 (Qld) ss 30 and 31.
[14]Land Title Act 1994 (Qld) s 115L(1).
[15]Land Title Act 1994 (Qld) s 115L(3)
[16]BCCM Act s 24.
The CMS may be recorded only if it complies with the requirements of the BCCM Act. Those requirements are to be found in various sections of that Act, including ss 52, 57, 60 and 66. Relevantly, the CMS must be noted by the relevant planning body (in this case the Brisbane City Council) and endorsed accordingly.[17]
[17]Land Title Act 1994 (Qld) s 115K; BCCM Act s 60.
The Registrar of Titles has power to requisition a CMS under s 156 of the Land Title Act 1994 (Qld).
Chronology
On 6 April 2009 the defendant executed the proposed first CMS for the Tennyson Reach Community Titles Scheme. It was noted and endorsed by the BCC. On 16 April 2009 the defendant –
(a) lodged proposed survey plan 195376 for registration;
(b) lodged general request 712345038; and
(c) deposited the CMS with the general request
with the Registrar of Titles.
On 20 April 2009 the Registrar of Titles issued requisition 1 on the CMS in these terms –
"Schedule B
For disclosure purposes, the full Lot on Plan description should be shown in item 2, stage 1 on page 9 e.g. lot 6 on SP 214201."
On 24 April 2009 the Registrar of Titles issued requisition 1 on the plan of survey which provided relevantly –
"In view of Section 44 of the BCCM Act 1997 which only authorises a Body Corporate to have an interest in a lot included in the scheme if the interest is a registered easement for 1 or more basic utility services for the scheme, Easements 711974197 and 712258624 appear to contravene this section and must be addressed prior to registration of this plan. It would appear that these easements may have to be surrendered.
As a consequence of the above paragraph the allocation of easements and the plotting of these easements may have to be amended".[18]
[18]Page 995 of the trial bundle.
The defendant did not amend the allocation of the easements and the plotting of the easements as proposed in the requisition dated 24 April, 2009. Rather, its solicitors received the general request and CMS back from the Registrar of Titles and made handwritten amendments to them. They –
(a)deleted lot 2 on SP 195275 from item 4 of the Scheme Land Schedule on page 4 of the CMS;[19]
[19]Page 922 of the trial bundle.
(b)deleted lot 2 on SP 195275 from Schedule A – Schedule of Lot Entitlements on page 6 of the CMS;[20]
[20]Page 924 of the trial bundle.
(c)deleted the Contribution Lot Entitlement and the Interest Lot Entitlement from Schedule A – Schedule of Lot Entitlements on page 6 of the CMS;[21]
[21]Page 924 of the trial bundle.
(d)amended Contribution Lot Entitlement and the Interest Lot Entitlement for lot 3 on SP195275 on Schedule A – Schedule of Lot Entitlements on page 6 of the CMS;[22]
[22]Page 924 of the trial bundle.
(e)amended paragraph 2 of the Schedule B on page 9 of the CMS by:
(i)deleting lot 2 on SP 195275 from the Scheme Land;
(ii) including lot 2 on SP 195275 as Additional Land to be progressively included in the Scheme Land; and
(iii) other minor amendments;[23]
(f)amended paragraph 4 of Schedule 1 on page 11 of the CMS by inserting, "or as otherwise determined by the Original Owner in its absolute discretion" at the end thereof;[24]
(g)deleted lot 2 on SP 195275 from Schedule D on page 41 of the CMS;[25]
(h)amended Schedule E on pages 45 and 47 of the CMS by changing the reference to "lot 2 on SP 195275" to "lot 3 on SP 195275".[26]
[23]Page 927 of the trial bundle.
[24]Page 929 of the trial bundle.
[25]Page 968 of the trial bundle.
[26]Pages 981 and 983 of the trial bundle.
The defendant’s solicitors returned the amended general request and CMS to the Registrar of Titles on 27 April 2009.
Thus, the defendant amended the community management statement in satisfaction of the requisition without seeking re-noting and re-endorsement by the BCC.
The same day the defendant's solicitors delivered a further statement to the plaintiff’s solicitors pursuant to s 214 of the BCCM Act, notifying the plaintiff of the amendments to the CMS originally lodged with the Registrar.
And on the same day the Registrar of Titles recorded the CMS as amended and registered the plan of subdivision.
The next day the defendant's solicitors notified the plaintiff’s solicitors that Community Title Scheme 39925 for the site had been established.
The plaintiff contends that the recording of the community management statement was invalid, and that the community titles scheme was not validly established.
The requirement for noting by the planning body
Section 60 of the BCCM Act in force at the time provided[27] –
[27]See Reprint 4C.
"60 Community management statement notation
(1) Subject to subsection (6), a community management statement proposed to be recorded for a community titles scheme may be recorded only if each relevant planning body for the scheme has endorsed on the statement a certificate (a community management statement notation).(2) In a community management statement notation a relevant planning body for a community titles scheme states only that it has noted the community management statement.
(3) Subject to subsection (4), a relevant planning body must endorse a community management statement notation on the proposed community management statement.
(4) For a community titles scheme intended to be developed progressively, a relevant planning body for the scheme is not required to endorse a community management statement notation on the proposed community management statement if there is an inconsistency between a provision of the statement and -
(a) if the relevant planning body is a local government—a lawful requirement of, or an approval given by, the local government under the Integrated Planning Act 1997; or
(b) if the relevant planning body is the urban land development authority—a lawful requirement of, or an approval given by—
(i) a local government under the Integrated Planning Act 1997; or
(ii) the urban land development authority under the Urban Land Development Authority Act 2007; or
(c) the planning instrument of the relevant planning body; or
(d) a lawful requirement of, or an approval given by, the relevant planning body under the planning instrument of the relevant planning body.
Example for subsection (4)—
A relevant planning body that is a local government would be expected to refuse to endorse a proposed community management statement with a community management statement notation if the statement envisages development of part of the scheme land in a way prohibited under its planning instrument. However, the relevant planning body would be expected to endorse the proposed statement with a community management statement notation if the proposed community management statement acknowledges that development of the part of the land in the way proposed will proceed only if and when a suitable amendment of the planning instrument is made.(5) For subsection (4), a provision of the statement is not inconsistent with a planning instrument only because -
(a) the planning instrument allows a person to do an act or engage in an activity in the area in which the community titles scheme is established; and
(b) the provision requires the person to obtain the body corporate’s permission before doing the act or engaging in the activity on scheme land.
(6) Despite subsection (1), a new community management statement may be recorded without the endorsement on it of any community management statement notation that is otherwise required if—
(a) there is no difference between the existing statement for the scheme and the new statement for any issue that a relevant planning body for the scheme could have regard to for identifying an inconsistency mentioned in subsection (4); or
Example for paragraph (a) -
The new statement includes an interest schedule that is different from the interest schedule included in the existing statement, but there is otherwise no difference between the 2 statements.
(b) any difference between the statements is limited to changes to reflect—
(i) a lot entitlement adjustment agreed to under section 50; or
(ii) a formal acquisition affecting the scheme; or
(iii) a change in a services location diagram for the scheme; or
(iv) the incorporation of a lot with common property, or conversion of lessee common property to a lot, under section 40.
(7) If a relevant planning body for the scheme does not endorse a community management statement notation within 40 days after the community management statement is submitted for endorsement under this section, or refuses to endorse the notation -
(a) the person who submitted the community management statement for endorsement of the notation may appeal to the Planning and Environment Court under the Integrated Planning Act 1997; and
(b) the court is required to hear and decide the appeal.
(8) For an appeal under subsection (7) -
(a) the relevant planning body is the respondent; and
(b) the Integrated Planning Act 1997, chapter 4, part 1, divisions 10 to 12 apply, with necessary changes, as if -
(i) the appeal were an appeal mentioned in the divisions; and
(ii) the relevant planning body were the only other party to the appeal; and
(c) the appellant must give the relevant planning body the written notice of the appeal under the divisions within 10 business days after starting the appeal.
(9) In this section -
planning instrument, of a relevant planning body, means -(a) if the body is a local government -
(i) its planning scheme under the Integrated Planning Act 1997; or
(ii) an instrument of the local government having effect as if it were a planning scheme of the local government; or
(b) if the body is the urban land development authority—an interim land use plan or development scheme under the Urban Land Development Authority Act 2007.
relevant planning body, for a community titles scheme, means -
(a) to the extent scheme land is or is proposed to be located in an urban development area—the urban land development authority; and
(b) to the extent scheme land is or is proposed to be located in a local government area but not in an urban development area—the local government for the local government area."
Under s 60(3) of the BCCM Act a planning body must make a notation endorsement on a CMS except in the limited circumstances in s 60(4), which are inapplicable to the present case. If it does not do so, the person who submitted it for endorsement may appeal to the Planning and Environment Court.[28] It is difficult to see how a planning body could possibly defend its position on appeal in the face of s 60(3), unless the case were within s 60(4).
[28]BCCM Act s 60(7).
All that the planning body is required to do is to "note" the CMS. Indeed, that is all it may do. This is the ordinary meaning of the words used in s 60, and it is consistent with the legislative history of the section.
Section 60 was originally numbered s 54. It provided[29] –
[29]BCCM Act Reprint 1, effective 31 July 1997.
"Local government community management statement notation
54.(1) A community management statement proposed to be recorded for a community titles scheme may be recorded only if the local government for each local government area in which scheme land is or is proposed to be located has endorsed on the statement a certificate (a “community management statement notation”).(2) In a community management statement notation a local government states only that the local government has noted the community management statement.
(3) A local government may refuse to endorse a community management statement notation on a proposed community management statement only if there is an inconsistency between the provisions of the statement and—
(a) a lawful requirement of, or an approval given by, the local government under the Planning Act; or
(b) if the local government has a planning scheme—the planning scheme, or a lawful requirement of, or an approval given by, the local government under the planning scheme; or
(c) if the local government does not have a planning scheme—another instrument having effect under the Planning Act in the local government’s area, or a lawful requirement of, or an approval given by, the local government under the instrument.
Example for subsection (3) -
A local government would be expected to refuse to endorse a proposed community management statement with a community management statement notation if the statement envisages development of part of the scheme land in a way prohibited under the local government’s planning scheme. However, the local government would be expected to endorse the proposed statement with a community management statement notation if the proposed community management statement acknowledges that development of the part of the land in the way proposed will proceed only if and when a suitable amendment of the planning scheme is made.(4) Despite subsection (1), a new community management statement may be recorded for a community titles scheme without the endorsement on it of a community management statement notation if there is no difference between the existing statement for the scheme and the new statement for any issue that the local government could have regard to for identifying an inconsistency mentioned in subsection (3).
Example of new statement not requiring community management statement notation—
The new statement includes an interest schedule that is different from the interest schedule included in the existing statement, but there is otherwise no difference between the 2 statements.(5) If the local government does not endorse a community management statement notation within 40 days after a community management statement is submitted for endorsement under this section, or refuses to endorse the notation—
(a) the person who submitted the community management statement for endorsement of the notation may appeal to the Planning and Environment Court under the Planning Act; and
(b) the court is required to hear and determine the appeal."
It was amended by the Body Corporate and Community Management and Other Legislation Amendment Act 2003 (Qld),[30] so that it became –
[30]These amendments were effective 4 March 2003 with BCCM Act Reprint 1H.
"54 Local government community management statement notation
(1) Subject to subsection (6), a community management statement proposed to be recorded for a community titles scheme may be recorded only if the local government for each local government area in which scheme land is or is proposed to be located has endorsed on the statement a
certificate (a “community management statement notation”).(2) In a community management statement notation a local government states only that the local government has noted the community management statement.
(3) Subject to subsection (4), the local government must endorse the community management statement notation on the proposed community management statement.
(4) For a community titles scheme intended to be developed progressively, the local government is not required to endorse the notation on the proposed statement if there is an inconsistency between a provision of the statement and -
(a) a lawful requirement of, or an approval given by, the local government under the Planning Act; or
(b) the local government’s planning scheme; or
(c) a lawful requirement of, or an approval given by, the local government under its planning scheme.
Example for subsection (4)—
A local government would be expected to refuse to endorse a proposed community management statement with a community management statement notation if the statement envisages development of part of the scheme land in a way prohibited under the local government’s planning scheme. However, the local government would be expected to endorse the proposed statement with a community management statement notation if the proposed community management statement acknowledges that development of the part of the land in the way proposed will proceed only if and when a suitable amendment of the planning scheme is made.(5) For subsection (4), a provision of the statement is not inconsistent with a planning scheme if -
(a) the planning scheme allows a person to do an act or engage in an activity in the area in which the community titles scheme is established; and
(b) the provision requires the person to obtain the body corporate’s permission before doing the act or engaging in the activity on scheme land.
(6) Despite subsection (1), a new community management statement may be recorded without the endorsement on it of a community management statement notation if -
(a) there is no difference between the existing statement for the scheme and the new statement for any issue that the local government could have regard to for identifying an inconsistency mentioned in subsection (4); or
Example for paragraph (a)—
The new statement includes an interest schedule that is different from the interest schedule included in the existing statement, but there is otherwise no difference between the 2 statements.(b) any difference between the statements is limited to changes to reflect—
(i) a lot entitlement adjustment agreed to under section 47; or
(ii) a formal acquisition affecting the scheme; or
(iii) a change in a services location diagram for the scheme; or
(iv) the incorporation of a lot with common property, or conversion of lessee common property to a lot, under section 42.
(7) If the local government does not endorse a community management statement notation within 40 days after a community management statement is submitted for endorsement under this section, or refuses to endorse the notation—
(a) the person who submitted the community management statement for endorsement of the notation may appeal to the Planning and Environment Court under the Planning Act; and
(b) the court is required to hear and determine the appeal." (emphasis added).
Importantly, a new subsection (3) was introduced, providing that the local government must make a notation endorsement on the CMS.
Pursuant to s 14B of the Acts Interpretation Act 1954 (Qld), extrinsic material may be considered to confirm the interpretation conveyed by the ordinary meaning of a provision. The Explanatory Notes relating to the bill by which the amendment was introduced into Parliament included the following[31] –
[31]Body Corporate and Community Management and Other Legislation Amendment Bill 2002 (Qld).
"Clause 9 Amendment of s 54 (Local government community management statement notation)
Clause 19 A community management statement is not a tool by which a local government can control directly or indirectly the way a community titles scheme is developed or operates. For example, it is very common for local governments to misuse the local government community management notation provision by requiring the inclusion of development conditions in the community management statement for the scheme or purported changes to the statutory by-laws in Schedule 2 to the Act.
The amendment of section 54, in clause 19, to include the word ‘must’ in subsection 3, now compels the local government to note the community management statement, except for the exclusions provided for in subsection 4.
The proposed subsection 4A is included to remove the local government’s opportunity to meddle in the internal management of the body corporate through local government notation provisions. Local Governments have been purporting to use the notation provisions to direct how exclusive use allocations are to be made, or if a planning scheme allows for a restaurant or shops in the building but the body corporate decides not to have those facilities in the scheme, to direct that the body corporate must agree to the restaurant.
The proposed subsection 4B also includes a number of instances where no local government notation is required for what are essentially non-local government or internal body corporate issues.
For example if a local government were to compulsorily acquire a lot in a community titles scheme, the local government would have had to note the new community management statement for the changed scheme. This would have been illogical bureaucratise.
Similarly, where lot owners agree to change lot entitlements, the change is an internal administrative matter for the owners and the body corporate and not an issue for the local government. A copy of the recorded community management statement will be provided to the local government for their records at a later time."
The section was renumbered as s 60 from 1 December 2003.[32]
[32]Reprint 2A. See Reprints Act 1992 (Qld) s 43 as required by the BCCM Act s 269A (Reprint 2).
It was omitted and replaced with a new provision by the Urban Land Development Authority Act 2007 (Qld),[33] by which a CMS was to be noted and endorsed by the relevant planning authority rather than the local government.
[33]Act No 41 of 2007. Those amendments were effected by the BCCM Act, Reprint 4A.
Amendment of CMS
The legislation does not contain any express provision allowing or disallowing amendment of a CMS prior to its being recorded by the Registrar of Titles; nor does it deal with the effect of a purported amendment in such circumstances.
Once recorded, a CMS cannot be amended, but a new CMS may be recorded in its place.[34]
[34]BCCM Act s 54.
A new CMS that has not been noted and endorsed by the relevant planning body may be recorded in the circumstances set out in s 60(6) of the BCCM Act – that is, where the difference would not have allowed the planning body to resist endorsing it under s 60(4), or if the difference between the CMSs is limited to changes reflecting the matters in s 60(6)(b) – adjustments to lot entitlements, changes to reflect a formal acquisition affecting the scheme, changes to reflect a change in a services location diagram, or changes to reflect a lot being incorporated within or taken out of common property.
Thus a new CMS effecting an inconsequential change is not required to be noted and endorsed by the planning authority. This is some indication that an amendment made after a CMS has been deposited and in response to a requisition by the Registrar of Titles does not require further noting and endorsement by the planning authority before it is recorded.
The recording of the CMS is an essential step in the creation of the community titles scheme. The recording may occur only if the CMS complies with the requirements of the BCCM Act. It is a requirement of that Act that the first CMS be noted and endorsed by the planning authority before it is recorded. It is only in limited circumstances, which do not apply in this case, that the planning authority may refuse to note and endorse that CMS. There is no express requirement that it be re-noted and re-endorsed after any amendment subsequent to that notation and endorsement in satisfaction of a requisition by the Registrar of Titles. A new CMS, by which inconsequential changes are made, does not have to be noted and endorsed by the planning authority.
I infer that, at least where the change made by the amendment is not one which the relevant planning body could refuse to endorse if it were made by way of a new CMS, the amended CMS does not have to be re-noted and re-endorsed by the planning body.
Lot 2 on SP 195275 was land to be developed in Stage 2, but nevertheless to be part of the scheme upon its establishment. There were to be two easements over it for the benefit of the body corporate – Easement E for access and Easement H for additional car parking. However, pursuant to s 44 of the BCCM Act, a body corporate may have an interest in a lot included in the scheme only if it is an easement for basic utility services for the scheme, or if common property is created pursuant to s 37. Easements E and H did not fit that description. The first CMS was amended to classify lot 2 on SP 195275 as additional land to be brought into the scheme upon completion of Stage 2, as opposed to a development lot included in the scheme upon its establishment. Had these amendments been made by way of a new CMS, the BCC would have been obliged by s 60(3) to endorse its notation on the new CMS.
I infer that the Legislature did not intend that a CMS amended in this fashion had to be re-noted and re-endorsed.
I conclude, therefore, that the CMS was not invalid, and that the community titles scheme was validly established. The plaintiff’s claim in proceeding 4712/09 should be dismissed.
Orders
In proceeding 4514/09 the claim should be dismissed, and on the counterclaim there should be an order for specific performance. In proceeding 4712/09 the claim should be dismissed.
I will hear the parties on the form of the orders and on costs.
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