Fletcher v Kakemoto - [2011] QCA 46

SUPREME COURT OF QUEENSLAND

CITATION:

Fletcher v Kakemoto & Anor [2011] QCA 46

PARTIES:

BRIAN FLETCHER
(appellant)
v
AKEO KAKEMOTO
(first respondent)
LUCY COLE PRESTIGE PROPERTIES – PARADISE WATERS PTY LTD
ACN 101 178 705
(second respondent)

FILE NO/S:

Appeal No 7764 of 2010
SC No 2626 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

16 November 2010

JUDGES:

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

ORDERS:

1.The appeal be dismissed.

2. The appellant pay the respondents’ costs of and incidental to the appeal.

CATCHWORDS:

CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OTHER MATTERS – where the buyer consented to waiving the cooling off period – where the proposed contract was a 'relevant contract' – whether the Property Agents and Motor Dealers Act 2000 (Qld) requires Form 30C to be signed each time an amendment is made to a proposed contract – whether the vendor validly terminated the contract by reason of an alleged non-compliance with s 366B(4) and s 366D(3) of the Property Agents and Motor Dealers Act 2000 (Qld)

Property Agents and Motor Dealers Act 2000 (Qld) s 363, s 365, s 366B(4), s 366D(3), s 367

Doolan v Rothmont Projects Pty Ltd [2010] QSC 193, distinguished
Johnston v Jewry [2008] 1 Qd R 360; [2007] QCA 188; considered

COUNSEL:

The appellant appeared on his own behalf
J Sweeney for the first respondent
S Couper for the second respondent

SOLICITORS:

The appellant appeared on his own behalf
Hickey Lawyers for the first respondent
Carter Newell Lawyers for the second respondent

MARGARET McMURDO P: The appellant, Brian Fletcher, entered into a contract with the first respondent, Akeo Kakemoto, for the sale of the penthouse in the Q1 apartment building, Surfers Paradise, for $8.5 million on 13 April 2007. Settlement was due "on or before 9 months from the contract date". Mr Fletcher purported to terminate the contract on 14 January 2008. He contended he was entitled to do so under s 367 Property Agents and Motor Dealers Act 2000 (Qld)[1] because of non-compliance with s 366B(4) and s 366D(3), contained in Ch 11 (Residential Property Sales) of that Act.[2]
[1]It was agreed at the appeal that reprint 3 was the relevant reprint.
[2]Ch 11 has been extensively amended by Property Agents and Motor Dealers and Other Legislation Amendment Act 2010 (Qld), pt 2.

I agree with Philippides J's reasons for refusing this appeal with costs, but add a brief observation in case our construction of Ch 11 is wrong.

Philippides J has set out the relevant statutory provisions.[3] On 9 April 2007, Mr Fletcher signed both a proposed contract for the purchase of the penthouse and a Ch 11 warning statement. The primary judge found this was "a proposed relevant contract" under…

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 Fletcher v Kakemoto

Details

AGLC: Fletcher v Kakemoto [2011] QCA 46
Case: [2011] QCA 46
Decision Date: 18 March 2011

CaseChat Overview and Summary

The appeal arose from a dispute between the buyer, Fletcher, and the seller, Kakemoto, regarding the sale of a property in Queensland. The matter was initially heard in the Queensland Civil and Administrative Tribunal (QCAT) before being appealed to the Queensland Court of Appeal. The appeal centred on the interpretation and application of statutory obligations and restrictions in the context of a contract for sale, particularly focusing on the requirements of the Property Agents and Motor Dealers Act 2000 (Qld) concerning the use of Form 30C.

The primary legal issue before the court was whether the Property Agents and Motor Dealers Act 2000 (Qld) mandates that Form 30C must be signed each time an amendment is made to a proposed contract. Additionally, the court had to determine whether the vendor validly terminated the contract due to an alleged non-compliance with sections 366B(4) and 366D(3) of the Act. The court also considered the buyer’s consent to waiving the cooling-off period and its implications on the statutory obligations.

In its decision, the Court of Appeal held that the Property Agents and Motor Dealers Act 2000 (Qld) does not require Form 30C to be signed each time an amendment is made to a proposed contract. The court found that the statutory obligations were not strictly adhered to, but the buyer's consent to waiving the cooling-off period and the minor nature of the amendments meant the vendor did not have valid grounds to terminate the contract. The appeal was dismissed, and the appellant was ordered to pay the respondents' costs of and incidental to the appeal.

The court's reasoning emphasised the importance of statutory compliance in the context of property sales, while also acknowledging the practicalities of contract negotiations and amendments. The decision clarified that while statutory requirements must be observed, the overarching intent and consent of the parties involved in the sale must also be respected. The outcome reinforced the need for clarity in contractual processes to avoid disputes and ensure that statutory protections for purchasers are effectively upheld.

Orders

Orders of the court

1.The appeal be dismissed.

2. The appellant pay the respondents’ costs of and incidental to the appeal.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Fletcher v Kakemoto & Anor [2011] QCA 46
PARTIES:	BRIAN FLETCHER (appellant) v AKEO KAKEMOTO (first respondent) LUCY COLE PRESTIGE PROPERTIES – PARADISE WATERS PTY LTD ACN 101 178 705 (second respondent)
FILE NO/S:	Appeal No 7764 of 2010 SC No 2626 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 March 2011
DELIVERED AT:	Brisbane
HEARING DATE:	16 November 2010
JUDGES:	Margaret McMurdo P, Chesterman JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1.The appeal be dismissed. 2. The appellant pay the respondents’ costs of and incidental to the appeal.
CATCHWORDS:	CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OTHER MATTERS – where the buyer consented to waiving the cooling off period – where the proposed contract was a 'relevant contract' – whether the Property Agents and Motor Dealers Act 2000 (Qld) requires Form 30C to be signed each time an amendment is made to a proposed contract – whether the vendor validly terminated the contract by reason of an alleged non-compliance with s 366B(4) and s 366D(3) of the Property Agents and Motor Dealers Act 2000 (Qld) Property Agents and Motor Dealers Act 2000 (Qld) s 363, s 365, s 366B(4), s 366D(3), s 367 Doolan v Rothmont Projects Pty Ltd [2010] QSC 193, distinguished Johnston v Jewry [2008] 1 Qd R 360; [2007] QCA 188; considered
COUNSEL:	The appellant appeared on his own behalf J Sweeney for the first respondent S Couper for the second respondent
SOLICITORS:	The appellant appeared on his own behalf Hickey Lawyers for the first respondent Carter Newell Lawyers for the second respondent