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Francis v NPD Property Development P/L

Francis v NPD Property Development P/L

Case [2004] QSC 202 30 June 2004

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SUPREME COURT OF QUEENSLAND

CITATION: Francis & Anor v NPD Property Development P/L [2004]
QSC 202
Dippel v NPD Property Development P/L
Giles-Duffy v NPD Property Development P/L
Giles-Duffy & Anor v NPD Property Development P/L
Fisher & Anor v NPD Property Development P/L
Fisher & Anor v NPD Property Development P/L
PARTIES: JOHN WILLIAM FRANCIS and DOREEN VICKI
FRANCIS
(applicants)
v
NPD PROPERTY DEVELOPMENT PTY LTD
ACN 088 360 516
(respondent)
LILLIAN ESTELLE DIPPEL
(applicant)
v
NPD PROPERTY DEVELOPMENT PTY LTD
ACN 088 360 516
(respondent)
WILLIAM JOHN GILES-DUFFY
(applicant)
v
NPD PROPERTY DEVELOPMENT PTY LTD
ACN 088 360 516
(respondent)
WILLIAM JOHN GILES-DUFFY and ELIZABETH
ANNE SCHMIDT
(applicants)
v
NPD PROPERTY DEVELOPMENT PTY LTD
ACN 088 360 516
(respondent)
LESLIE GORDON FISHER and SUSANNE ELLEN
FISHER
(applicants)
v
NPD PROPERTY DEVELOPMENT PTY LTD
ACN 088 360 516
(respondent)
BRIAN LESLIE FISHER and GREG ANTHONY
FISHER
(applicants)
v
NPD PROPERTY DEVELOPMENT PTY LTD
ACN 088 360 516
(respondent)

FILE NOS:

BS 2121 of 2004 BS 2122 of 2004 BS 2133 of 2004 BS 2124 of 2004 BS 2125 of 2004 BS 2126 of 2004
DIVISION: Trial Division
PROCEEDING: Trial
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 30 June 2004
DELIVERED AT: Brisbane
HEARING DATE: 21 June 2004
JUDGE: Muir J
ORDER: Declare that the contract referred to in the originating
application is void.

Order that the respondent pay the applicants’ costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

CONTRACTS – ILLEGAL AND VOID CONTRACTS – CONTRACTS ILLEGAL BY STATUTE – GENERAL PRINCIPLES – whether the contracts contravened section 8 of the Land Sales Act 1984 (Qld) and are consequently void

CONTRACTS – MATTERS NOT GIVING RISE TO BINDING CONTRACT – VAGUENESS AND UNCERTAINTY – SALE OF LAND – whether the contracts are void for uncertainty

CONTRACTS – ILLEGAL AND VOID CONTRACTS – EFFECT OF ILLEGALITY OR INVALIDITY – SEVERANCE - whether the relevant provisions should be severed from the contracts
Land Sales Act 1984 (Qld) ss 2, 6, 8, 9, 10, 19
Land Title Act 1994 (Qld) s 62
Attorney-General v Barker Bros Ltd [1976] 2 NZLR 495
Attorney-General v Felixstowe Gas Light Co [1907] 2 KB
984
Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd
(1982) 149 CLR 600
Commissioner of Stamp Duties v Parbury Estates Limited
(1913) 16 CLR 521
Day and Dent Construction Pty Ltd (In liq) v North
Australian Properties Pty Ltd (1982) 40 ALR 389.
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp
Duties [1978] 78 ATC 4147
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp
Duties (NSW) (1981-82) 149 CLR 431
Farm Products Co-op v Commissioner of Inland Revenue
(1969) NZLR 874
Federal Commissioner of Taxation v Everett (1978) 78 ATC
4595
Godecke v Kirwan (1973) 129 CLR 629
Great Western Railway Co v Commissioner of Inland
Revenue [1894] 1 QB 507
John Foster & Sons Ltd v Commissioner of Inland Revenue
[1894] 1 QB 516

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 Francis v NPD Property Development P/L

Details

AGLC: Francis v NPD Property Development P/L [2004] QSC 202
Case: [2004] QSC 202
Decision Date: 30 June 2004

CaseChat Overview and Summary

The plaintiff, Francis, brought an action against NPD Property Development P/L, the defendant, seeking a declaration that a contract between the parties was void under section 8 of the Land Sales Act 1984 (Qld). The dispute centred around the validity of a contract that was allegedly in contravention of statutory provisions prohibiting certain land sales practices. The case was heard in the Queensland Land Court, where the court was required to determine whether the contract was illegal and therefore void.

The primary legal issue before the court was whether the contract between the plaintiff and the defendant contravened section 8 of the Land Sales Act 1984 (Qld). This section prohibits the sale of land by instalments unless certain conditions are met. The court needed to determine if the contract was in breach of this statutory provision, and if so, whether it rendered the contract void. The court also had to consider the consequences of such a finding, including the appropriate remedy in the form of a declaration of voidness.

In delivering its judgment, the court found that the contract did indeed contravene section 8 of the Land Sales Act 1984 (Qld). The court concluded that the terms of the contract allowed for the sale of land by instalments without meeting the statutory requirements, thereby rendering the contract illegal. Given the illegality of the contract, the court declared the contract void. The court found that the appropriate remedy was to declare the contract null and void, as per the plaintiff's request.

The court ordered that the contract referred to in the originating application be declared void. This outcome ensured that the illegal contract would not be enforceable in law, and it provided clarity for the parties involved regarding the status of their agreement. The declaration of voidness was intended to protect the public interest by preventing the enforcement of contracts that contravene statutory provisions designed to regulate land sales practices.

Orders

Orders of the court

Declare that the contract referred to in the originating

application is void.

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

Francis v NPD Property Development P/L [2004] QSC 202

Most Recent Citation

Three P/L v Body Corporate for Savoir Faire [2008] QCA 167

Cases citing this decision · 3 of 3 shown

Three P/L v Body Corporate for Savoir Faire
[2008] QCA 167 Para 1

…s not decided in the cases to which Wilson J referred, Re Rosemac Pty Ltd’s Caveat [1994] 1 Qd R 137 and Francis v NPD Property Development Pty Ltd [2004] QSC 202 . There appears to be no direct authority on the issue.…
Three P/L v. Body Corporate for Savoir Faire
[2007] QSC 358 Para 1

…iven to the effect of s 19 of the Act: Re Rosemac Pty Ltd ’s Caveat [1994] 1 Qd R 137 (White J), Francis & Anor v NPD Property Developments Pty Ltd [2004] QSC 202 (Muir J) and Wan v NPD Property Developments Pty Ltd [2005] 1 Qd R 340 (Wilson J). Whilst Mr Couper relied on them as supporting his submission Mr Musg…
Wan v NPD Property Development P/L
[2004] QSC 232 Para 1

…marks the entry of a purchaser upon the purchase” within the meaning of s 19(7) came before Muir J in Francis v NPD Property Development Pty Ltd [2004] QSC 202. His Honour rejected the interpretation now contended for by the same respondent. There seem to have been some submissions made to His Honour which were…

View all 3 citing cases →

Cases cited in this decision · 25 of 25 shown

Moore v The State Of Western Australia
[2024] HCASL 137 Para 9

…that the words ‘a sale of a right of way’ are apt to describe the grant for consideration by a landowner to another of such a right. In Moore v Western Australia (1907) 5 CLR 326, ‘sale’ was seen as appropriate to describe a transaction involving the grant of a Crown lease of the kind there in question: see (at 337-340) per Griffi…
Sun World Inc v Registrar, Plant Variety Rights
[1997] FCA 924 Para 2

…it); but if the consideration is something other than money the contract is not, strictly speaking, one of sale in English law.’” [2] (1997) 75 FCR 528.…
Perri v Coolangatta Investments Pty Ltd
[1982] HCA 29 Para 3

…pon execution.[22] [22] For a discussion of conditions precedent and conditions subsequent see Perri v Coolangatta Investments Pty Ltd [1986] 149 CLR 537 at 542 – 5 per Gibb CJ, 549-552 per Mason J.…
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW)
[1982] HCA 14 Para 1

…rte Property Unit Nominees (No. 2) Pty Limited [1981] Qd R 178 and D.K.L.R Holding Co (No 2) Pty Ltd v The Commissioner of Stamp Duties (NSW) (1982) 56 ALJR 287, especially at 299). Perhaps the best summation of the position is to be found in the judgment of Hope JA in DKLR Holding Co (No 2) v Commissioner of Stamp D…
Federal Commissioner of Taxation v Everett
[1980] HCA 6

…Commissioner of Stamp Duties (NSW) (1981-82) 149 CLR 431 Farm Products Co-op v Commissioner of Inland Revenue (1969) NZLR 874 Federal Commissioner of Taxation v Everett (1978) 78 ATC 4595 Godecke v Kirwan (1973) 129 CLR 629 Great Western Railway Co v Commissioner of Inland Revenue [1894] 1 QB 507 John Foster & Sons Ltd v Commissioner of Inland Rev…
Godecke v Kirwan
[1973] HCA 38

…Products Co-op v Commissioner of Inland Revenue (1969) NZLR 874 Federal Commissioner of Taxation v Everett (1978) 78 ATC 4595 Godecke v Kirwan (1973) 129 CLR 629 Great Western Railway Co v Commissioner of Inland Revenue [1894] 1 QB 507 John Foster & Sons Ltd v Commissioner of Inland Revenue [1894] 1 QB 516 McFarlane v Dan…
Placer Development Ltd v The Commonwealth
[1969] HCA 29

…[1984] 1 Qd R 212 Palette Shoes Pty Ltd v Krohn (1937) 58 CLR 1 Perri v Coolangatta Investments Pty Ltd [1986] 149 CLR 537 Placer Development Ltd v The Commonwealth (1969) 121 CLR 353 Snape v Kiernan (1988) 13 NSWLR 88 Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 444 Sun World Incorporated v Registrar, Plant Variety Rights (1997) 75 FCR 52…
Thomas Brown & Sons Ltd v Fazal Deen
[1962] HCA 59

…iety Rights (1997) 75 FCR 528 The Queensland Electricity Generating Board v New Hope Collieries Pty Ltd (1989) 1 Ll Rep 205 Thomas Brown & Sons Ltd v Fazal Deen (1962) 108 CLR 391 Watson v Issell (1890) 16 VLR 607 COUNSEL: J K Bond SC, with P W Hackett for the applicants R G Bain QC, with A W Duffy for the respondent SOLICITORS: Frank Carrol…
Commissioners of Stamps v Parbury Estates Limited
[1913] HCA 26 Para 8

…he following passage from Manifold v Diamond [8] was quoted with approval: “A sale imports a quid pro quo , in some way or other enuring to the [6] (1913) 16 CLR 521. [7] At 533. [8] 4B & C, 243 at 246. benefit of the party selling.”…
Moore and Scroope v Western Australia
[1907] HCA 56 Para 9

…a right of way’ are apt to describe the grant for consideration by a landowner to another of such a right. In Moore v Western Australia (1907) 5 CLR 326, ‘sale’ was seen as appropriate to describe a transaction involving the grant of a Crown lease of the kind there in question: see (at 337-340) per Griffith CJ. And…
Palette Shoes Pty Ltd (In Liquidation) v Krohn
[1937] HCA 37 Para 3

…after transfer of the whole of the land to the buyer, it will be held in trust by the buyer for the seller.[14] [14] Palette Shoes Pty Ltd v Krohn (1937) 58 CLR 1 at 16-17, 27 and Federal Commissioner of Taxation v Everett 78 ATC 4595 at 4609 per Deane J.…
Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd
[1982] HCA 53 Para 2

…reparation of the subdivisional plan. That is a matter which is entirely for the buyer. [17] Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 at 605 and 610-617; Attorney-General v Barker Bros Ltd [1976] 2 NZLR 495 and The Queensland Electricity Generating Board v New Hope Collieries Pty Lt…
[1983] 1 AC 444
[1983] 1 AC 444 Para 2

…5 and The Queensland Electricity Generating Board v New Hope Collieries Pty Ltd (1989) 1 Ll Rep 205, 210. [18] Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 444.…
Ltd v Commissioner of Inland Revenue
(1969) NZLR 874 Para 1

…red or conveyance which determines assessment, and this is unaffected by the existence of any outstanding equitable interest.” [11] (1969) NZLR 874 but compare to observations of Mason J in DKLR Holding Co (No 2) at 460 where his honour refers to the possibility, at common law, of transferring a bare legal estate.…
Cuming Smith and Company Pty Ltd v Melbourne Harbour Trust Commissioners
[1905] HCA 27 Para 2

…f the elimination of the invalid promises changes the extent only but not the kind of contract, the valid promises are severable: Putsman v Taylor ((1927) 1 KB 637 at 640, 641) . ” [23] (1938) 38 SR (NSW) 337. [24] (1962) 108 CLR 391 at 411.…
McFarlane v Daniell
4 CB 578

…y Co v Commissioner of Inland Revenue [1894] 1 QB 507 John Foster & Sons Ltd v Commissioner of Inland Revenue [1894] 1 QB 516 McFarlane v Daniell (1938) 38 SR (NSW) 337 Manifold v Diamond 4B & C, 243 O’Sullivan v Commissioner of Stamp Duties [1984] 1 Qd R 212 Palette Shoes Pty Ltd v Krohn (1937) 58 CLR 1 Perri v Coolangatta…
[1897] 1 QB 778
[1897] 1 QB 778 Para 2

…variety of statutory and common law settings is an exchange of commodities for money - J. & P. Coats Ltd v. Commissioners of Inland Revenue [1897] 1 QB 778 at 783; Simpson v. Connolly [1953] 1 WLR 911; Robshaw Brothers Ltd v. Mayer [1957] 1 Ch 125; Re Westminster Property Group PLC [1984] 1 WLR 1117, [1985] 1 WLR…
[1953] 1 WLR 911
[1953] 1 WLR 911 Para 2

…is an exchange of commodities for money - J. & P. Coats Ltd v. Commissioners of Inland Revenue [1897] 1 QB 778 at 783; Simpson v. Connolly [1953] 1 WLR 911; Robshaw Brothers Ltd v. Mayer [1957] 1 Ch 125; Re Westminster Property Group PLC [1984] 1 WLR 1117, [1985] 1 WLR 676. That meaning may be extended by statute…
[1984] 1 WLR 1117
[1984] 1 WLR 1117 Para 2

…97] 1 QB 778 at 783; Simpson v. Connolly [1953] 1 WLR 911; Robshaw Brothers Ltd v. Mayer [1957] 1 Ch 125; Re Westminster Property Group PLC [1984] 1 WLR 1117, [1985] 1 WLR 676. That meaning may be extended by statute expressly or by necessary implication - J. & P. Coats Ltd v. Commissioners of Inland Revenue (supra)…
[1985] 1 WLR 676
[1985] 1 WLR 676 Para 2

…; Simpson v. Connolly [1953] 1 WLR 911; Robshaw Brothers Ltd v. Mayer [1957] 1 Ch 125; Re Westminster Property Group PLC [1984] 1 WLR 1117, [1985] 1 WLR 676. That meaning may be extended by statute expressly or by necessary implication - J. & P. Coats Ltd v. Commissioners of Inland Revenue (supra) at 783 and see ge…
[1894] 1 QB 507
[1894] 1 QB 507 Para 4

…s, one party with something and the other giving something for it, the arrangement ultimately come to be embodied in an Act of Parliament.” [3] [1894] 1 QB 507.…
[1894] 1 QB 516
[1894] 1 QB 516 Para 5

…lotment of shares in the company to the partners in proportion to their respective shares in the partnership was held to be a conveyance of sale. [4] [1894] 1 QB 516.…
[1907] 2 KB 984
[1907] 2 KB 984 Para 6

…there should be two parties; there must be consensus between those parties; there must be a consideration and a transfer of the property.” [5] [1907] 2 KB 984 at 990.…
[1976] 2 NZLR 495
[1976] 2 NZLR 495 Para 2

…or the buyer. [17] Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 at 605 and 610-617; Attorney-General v Barker Bros Ltd [1976] 2 NZLR 495 and The Queensland Electricity Generating Board v New Hope Collieries Pty Ltd (1989) 1 Ll Rep 205, 210. [18] Sudbrook Trading Estate Ltd v Eggleton […
Saunders v Vautier
49 ER 482 Para 1

…d the beneficiary is sui juris , the beneficiary may put an end to the trust by requiring the trustee to transfer the trust property to him ( Saunders v Vautier (1841) Cr. And Ph. 240; 49 E.R. 282). Against that background it is not unusual for lawyers to say that the equitable estate is vested in the beneficiary. But it mu…

Legislation cited in this decision · 5

Land Sales Act 1984 (Qld)
10, 19, 2, 6, 8, 9 7 mentions (from Para 6)
Land Title Act 1994 (Qld)
62 2 mentions (from Para 1)
Finance Act 1895 c.16
1 mention (from Para 7)
Land Sales Act 1964 (NSW)
1 mention (from Para 9)
Webb v the Queen
1 mention (from Para 7)

CITATION:	Francis & Anor v NPD Property Development P/L [2004] QSC 202 Dippel v NPD Property Development P/L Giles-Duffy v NPD Property Development P/L Giles-Duffy & Anor v NPD Property Development P/L Fisher & Anor v NPD Property Development P/L Fisher & Anor v NPD Property Development P/L
PARTIES:	JOHN WILLIAM FRANCIS and DOREEN VICKI FRANCIS (applicants) v NPD PROPERTY DEVELOPMENT PTY LTD ACN 088 360 516 (respondent)
LILLIAN ESTELLE DIPPEL (applicant) v NPD PROPERTY DEVELOPMENT PTY LTD ACN 088 360 516 (respondent)
WILLIAM JOHN GILES-DUFFY (applicant) v NPD PROPERTY DEVELOPMENT PTY LTD ACN 088 360 516 (respondent)
WILLIAM JOHN GILES-DUFFY and ELIZABETH ANNE SCHMIDT (applicants) v NPD PROPERTY DEVELOPMENT PTY LTD ACN 088 360 516 (respondent)
LESLIE GORDON FISHER and SUSANNE ELLEN FISHER (applicants) v NPD PROPERTY DEVELOPMENT PTY LTD ACN 088 360 516 (respondent)
BRIAN LESLIE FISHER and GREG ANTHONY FISHER (applicants) v NPD PROPERTY DEVELOPMENT PTY LTD ACN 088 360 516 (respondent)
FILE NOS:	BS 2121 of 2004 BS 2122 of 2004 BS 2133 of 2004 BS 2124 of 2004 BS 2125 of 2004 BS 2126 of 2004
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	30 June 2004
DELIVERED AT:	Brisbane
HEARING DATE:	21 June 2004
JUDGE:	Muir J
ORDER:	Declare that the contract referred to in the originating application is void.
Order that the respondent pay the applicants’ costs of and incidental to the application to be assessed on the standard basis.
CATCHWORDS:	CONTRACTS – ILLEGAL AND VOID CONTRACTS – CONTRACTS ILLEGAL BY STATUTE – GENERAL PRINCIPLES – whether the contracts contravened section 8 of the Land Sales Act 1984 (Qld) and are consequently void
CONTRACTS – MATTERS NOT GIVING RISE TO BINDING CONTRACT – VAGUENESS AND UNCERTAINTY – SALE OF LAND – whether the contracts are void for uncertainty
CONTRACTS – ILLEGAL AND VOID CONTRACTS – EFFECT OF ILLEGALITY OR INVALIDITY – SEVERANCE - whether the relevant provisions should be severed from the contracts
Land Sales Act 1984 (Qld) ss 2, 6, 8, 9, 10, 19 Land Title Act 1994 (Qld) s 62
Attorney-General v Barker Bros Ltd [1976] 2 NZLR 495 Attorney-General v Felixstowe Gas Light Co [1907] 2 KB 984 Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 Commissioner of Stamp Duties v Parbury Estates Limited (1913) 16 CLR 521 Day and Dent Construction Pty Ltd (In liq) v North Australian Properties Pty Ltd (1982) 40 ALR 389. DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1978] 78 ATC 4147 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1981-82) 149 CLR 431 Farm Products Co-op v Commissioner of Inland Revenue (1969) NZLR 874 Federal Commissioner of Taxation v Everett (1978) 78 ATC 4595 Godecke v Kirwan (1973) 129 CLR 629 Great Western Railway Co v Commissioner of Inland Revenue [1894] 1 QB 507 John Foster & Sons Ltd v Commissioner of Inland Revenue [1894] 1 QB 516