Francis v NPD Property Development Pty Ltd

Case [2004] QCA 343

SUPREME COURT OF QUEENSLAND

CITATION:

 Francis & Others v NPD Property Development P/L [2004] QCA 343

PARTIES:

JOHN WILLIAM FRANCIS AND DOREEN VICKI FRANCIS
(applicants/respondents)
v
NPD PROPERTY DEVELOPMENT PTY LTD
ACN 088 360 516
(respondent/appellant)

LILLIAN ESTELLE DIPPEL
(applicant/respondent)
v
NPD PROPERTY DEVELOPMENT PTY LTD
ACN 088 360 516
(respondent/appellant)

WILLIAM JOHN GILES-DUFFY
(applicant/respondent)
v
NPD PROPERTY DEVELOPMENT PTY LTD
ACN 088 360 516
(respondent/appellant)

WILLIAM JOHN GILES-DUFFY AND ELIZABETH ANNE SCHMIDT 
(applicants/respondents)
v
NPD PROPERTY DEVELOPMENT PTY LTD
ACN 088 360 516
(respondent/appellant)

LESLIE GORDON FISHER AND SUSANNE ELLEN FISHER
(applicants/respondents)
v
NPD PROPERTY DEVELOPMENT PTY LTD
ACN 088 360 516
(respondent/appellant)

BRIAN LESLIE FISHER AND GREG ANTHONY FISHER
(applicants/respondents)
v
NPD PROPERTY DEVELOPMENT PTY LTD
ACN 088 360 516

(respondent/appellant)

FILE NO/S:

Appeal Nos 6482 to 6487 of 2004

SC No 2121 to 2126 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

13 August 2004

JUDGES:

McPherson JA, Williams JA and Jerrard JA

Separate reasons for judgment of each member of the Court, McPherson JA and Williams JA concurring as to the orders made, Jerrard JA dissenting

ORDERS:

1.   Allow with costs the appeal in each of the originating applications

2.   Set aside the declaration that the contract referred to in each originating application is void

3.   Order that the originating applications be dismissed

4.   Each party is to pay his, her or its own costs of the proceedings at first instance 

CATCHWORDS:

CONTRACTS – ILLEGAL AND VOID CONTRACTS – CONTRACTS ILLEGAL BY STATUTE – GENERAL PRINCIPLES – where appellant purchased land from each of the respondents on the condition that, after the transfer of the land and once subdivision approval had been obtained, a smaller “sellers block” would be transferred back to each of the respondents – whether contracts contravened prohibition in s 8 Land Sales Act 1984

Land Sales Act 1984 (Qld) s 8

AFA v Garendon Investments Pty Ltd (1995) 37 NSWLR 221, applied
Anantamul Pty Ltd v Innes-Irons [1984] 2 Qd R 180, applied
Commissioner of State Revenue v Pioneer Concrete (Vic) Pty Ltd (2002) 209 CLR 651, considered
DKLR Holding Co (No 2) v Commission of Stamp Duties [1980] 1 NSWLR 510, cited
Ex p Property Unit Nominees (No 2) Pty Ltd [1981] Qd R 178, cited
Finance Corporation of Australia v Commissioner of Stamp Duties [1981] Qd R 493, considered
Robshaw Brothers Ltd v Mayer [1957] 1 Ch 125
Snape v Kiernan (1988) 13 NSWLR 88, cited

Timber Top Realty Pty Ltd v Mullens [1974] VR 312, applied

COUNSEL:

P A Keane QC with A W Duffy for the appellant

J K Bond SC with A M Pomerenke for the respondents

SOLICITORS:

Bain Gasteen for the appellant
Frank Carroll solicitors for the respondents in Appeal Nos 6482 to 6485 of 2004

Jones Leach Hawley for the respondents in Appeal Nos 6486 to 6487 of 2004

  1. McPHERSON JA: On…

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Details
AGLC
Francis v NPD Property Development Pty Ltd [2004] QCA 343
Case
[2004] QCA 343
Decision Date

CaseChat Overview and Summary

The appellant, Francis, appealed against a decision of the Supreme Court of Western Australia which held that contracts for the sale of land were void as they contravened section 8 of the Land Sales Act 1984. The respondents were the property developers, NPD Property Development Pty Ltd. The contracts in question involved the sale of land by the respondents to the appellant, with a condition that, following the transfer and after subdivision approval had been obtained, a smaller "sellers block" would be transferred back to the respondents. The Supreme Court had declared the contracts void due to their contravention of the prohibition in section 8 of the Act.

The primary legal issue before the court was whether the contracts were illegal and void under section 8 of the Land Sales Act 1984. Section 8 prohibits the sale of land by a developer unless the sale is accompanied by the grant of a lease or other interest in land for the benefit of the purchaser. The court was required to determine if the contracts, which involved a deferred transfer of a portion of the land, fell within the prohibition of this section. Additionally, the court considered whether the contracts could be severed to allow for the enforcement of the land transfer, while rendering the deferred transfer void.

The Court of Appeal found that the contracts did not contravene section 8 of the Act as they did not involve the sale of land by a developer. The court held that the respondents were not developers within the meaning of the Act, as they were not carrying on the business of selling land as part of a development. Furthermore, the court held that the contracts could be severed, allowing for the enforcement of the land transfer, while rendering the deferred transfer void. Consequently, the appeal was allowed, the declarations of voidness were set aside, and the originating applications were dismissed, with each party to bear their own costs.

Orders

Orders of the court

1. Allow with costs the appeal in each of the originating applications

2. Set aside the declaration that the contract referred to in each originating application is void

3. Order that the originating applications be dismissed

4. Each party is to pay his, her or its own costs of the proceedings at first instance

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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