Fletcher v Kakemoto

[2010] QSC 219

SUPREME COURT OF QUEENSLAND

CITATION:

Fletcher v Kakemoto [2010] QSC 219

PARTIES:

BRIAN FLETCHER

(plaintiff)

v

AKEO KAKEMOTO

(defendant)

and

LUCY COLE PRESTIGE PROPERTIES PARADISE WATERS PTY LTD (ACN 101 178 705)

(third party)

FILE NO:

BS2626 of 2008

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2010

JUDGE:

Martin J

ORDER:

THE PURPORTED TERMINATION OF THE CONTRACT WAS INVALID

CATCHWORDS:

CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNINGS AND LIKE MATTERS – where a purchaser signed a contract to purchase a unit – where the purchaser signed a warning statement before the offer was signed – where changes were made to the contract – where the cooling off period was waived – whether the purchaser had to sign a new warning statement before signing the amended contract – whether the contract was validly terminated by the purchaser

Body Corporate and Community Management Act 1997 (Qld)

Property Agents and Motor Dealers Act 2000 (Qld), ss 363, 364, 365, 366B, 366D, 367

Doolan v Rothmont Projects Pty Ltd [2010] QSC 193

COUNSEL:

The plaintiff was self-represented
J Sweeney for the defendant

S Cooper for the third party

SOLICITORS:

Hickey Lawyers for the defendant

Carter Newell for the third party

[1]      On 13 April 2007 the plaintiff, as purchaser, entered into a contract with the defendant, as vendor, for the sale of an apartment in the Q1 building at the Gold Coast. The sale price was $8,500,000.00. The sale was a “unit sale” within the meaning of that term in the Property Agents and Motor Dealers Act 2000 (“the Act”). On 14 January 2008 the plaintiff purported to terminate the contract pursuant to s 367 of the Act.

[2] On 9 April this year the Chief Justice ordered that the validity of the purported termination of the contract by reason of the alleged non-compliance with s 366B(4) and s 366D(3) of the Act be tried as a preliminary matter.

[3] This application is another example of what may be the unintended consequences of the vague, confusing and overly technical requirements of Chapter 11 of the Act. The plaintiff seeks to escape the consequences of what would, putting the Chapter 11 requirements to one side, be a binding contract, by asserting that he did not sign a relevant warning statement (again) and that he did not have his attention directed to the warning statement (again).

Chapter 11 of the Property Agents and Motor Dealers Act 2000

[4]      In Doolan v Rothmont Projects Pty Ltd [2010] QSC 193 I considered some of the requirements of the Act. I repeat below what I said in that case with variations to take into account the fact that this was a unit sale.

[5] The purposes of Chapter 11 are set out in s 363:

“363    Purposes of ch 11

The purposes of this chapter are—

(a)to give…