Glenlyon Developments Pty Ltd v Norfolk Estates Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Glenlyon Developments Pty Ltd v Norfolk Estates Pty Ltd [2006] QDC 158

PARTIES:

GLENLYON DEVELOPMENTS PTY LTD  ACN 102 950 710

Applicant Plaintiff

V

NORFOLK ESTATES PTY LTD ACN 010 355 138

Respondent Defendant

FILE NO/S:

BD 954 of 2005

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland, Brisbane

DELIVERED ON:

8 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2006

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Application dismissed

CATCHWORDS:

CONTRACT – TERMINATION – STATUTE GIVING RIGHT TO AVOID CONTRACT – whether plaintiff, a company, entitled to avoid contract under Property Agents and Motor Dealers Act 2000 – whether warning statement signed and dated by directors in compliance with that Act

Property Agents and Motor Dealers Act 2000, ss 366, 367
Corporations Act 2001, ss 127, 128, 129

Deputy C’ssner of Taxation v Salcedo [2005] QCA 227
MNM Developments v William Alan Gerrard [2005] QCA 230
M P Management (Aust) P/L v Churven & Anor [2002] QSC 320
MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636
Williams Deceased (1984) 36 SASR 423

COUNSEL:

Ms S J Armitage for Applicant Plaintiff
Mr J S Couper QC for Respondent Defendant

SOLICITORS:

Sunnybank Solicitors for Applicant
Quinn & Scattini for Respondent

1. This application for summary judgment is brought in proceedings which arise out of a contract for the sale of a property at Gladstone dated 31 March 2003.  It hinges upon the construction of legislation designed to ‘…ensure a form of consumer protection for the purchasers of residential property’[1]: the Property Agents and Motor Dealers Act 2000 which, in short, requires that a contract of this kind must have attached, as its first or top sheet, a statement containing specified warnings to the purchaser which, to be effective, must be signed and dated by the purchaser before the contract is signed; and, provides that non-compliance may entitle the purchaser to terminate.

   [1]MNM Developments v William Alan Gerrard [2005] QCA 230 per de Jersey CJ at [16]

1. The nature of the application is such as to require the court to determine whether the respondent has established some real prospect of succeeding at a trial[2].  Here, the exercise involves determining a discrete point which, if resolved in the applicant’s favour, would extinguish the primary facet of the respondent’s defence.

[2]Deputy C’ssner of Taxation v Salcedo [2005] QCA 227, per Williams JA at [17]

1. The plaintiff purchaser, a company, could only execute a document without its common seal if both directors, Mr Hill and Mr Street, signed[3].  It is not in issue that the defendant vendor’s agent, a Mr Spearing, delivered a warning statement (in the required form, and position vis a vis the contract) and the draft contract first to Mr Street and, materially, he signed but did not date the statement, and signed the contract.  Later, the Defendant signed the contract.  Later still, Mr Hill signed and dated the warning statement, and signed the contract.

   [3]Corporations…