Johnston v Jewry - [2007] QCA 188

SUPREME COURT OF QUEENSLAND

CITATION:

Johnston v Jewry & Anor [2007] QCA 188

PARTIES:

PAUL ANDREW JOHNSTON
(plaintiff/appellant)
v
BEVERLEY JUNE JEWRY
(defendant/first respondent)
JEPADCAB PTY LTD ABN 41 174 748 793 trading as BEACHSIDE NORTH SHORE REALTY
(third party/second respondent)

FILE NO/S:

Appeal No 11352 of 2006
SC No 8341 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

28 May 2007

JUDGES:

Jerrard JA, White and Atkinson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Dismiss the appeal
2. Appellant pay the first and second respondents’ costs of and incidental to the appeal to be assessed

CATCHWORDS:

CONVEYANCING - RELATIONSHIP OF VENDOR AND PURCHASER - STATUTORY PROTECTION OF PURCHASERS - OTHER STATES - where respondent agreed to sell to the appellant residential property - where Property Agents and Motor Dealers Act 2000 (Qld) required the respondent to attach a Form 30c "warning statement" to the contract "as its first or top sheet" - where failure to do this gave the appellant the right to terminate the contract by notice of prior settlement - where the appellant purported to exercise this right - where the respondent rejected termination - where the order of documents was the Form 27b agent's disclosure statement, then the Form 30c warning statement, and then the contract - where the appellant signed the documents in no particular order but signed the contract before signing the warning statement - whether the warning statement was attached to the contract as its first or top sheet - whether the warning statement was required to be attached when the prospective buyer receives the draft contract, or when the buyer signs the contract, or by the time the parties became bound - whether the appellant was entitled to terminate the contract and receive a refund of the deposit monies

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSIDERATION OF EXTRINSIC MATTERS - LEGISLATIVE HISTORY OF ACT - where Property Agents and Motor Dealers Act 2000 (Qld) was subsequently amended - where the subsequent amendments clarified the sections the subject of the ambiguity - whether the amendments can be used to ascertain the correct original intention of Parliament

Acts Interpretation Act1954 (Qld), s 33(10), s 33(11)
Liquor and Other Acts Amendment Act2005 (Qld)
Property Agents and Motor Dealers Act 2000 (Qld), s 138, s 363, s 364, s 365, s 365(1), s 365(3), s 366(1), s 366(2), s 366(3), s 366(4), s 367(2), s 367(4), s 368(1), s 598

Cape Brandy Syndicate v Inland Revenue Commissioners [1921] 2 KB 403, applied
The Deputy Federal Commissioner of Taxes (South Australia) v Elder's Trustee and Executor Company Ltd (1937) 57 CLR 610, applied
MNM Developments Pty Ltd v Gerrard [2005] QCA 230; [2005] 2 Qd R 515, followed
Ormond Investments Co v Betts (1928) AC 143, applied
Port…

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 Johnston v Jewry

Details

AGLC: Johnston v Jewry [2007] QCA 188
Case: [2007] QCA 188
Decision Date: 8 June 2007

CaseChat Overview and Summary

The appeal in Johnston v Jewry involves the dispute between the appellant and the respondents regarding the interpretation and application of the Property Agents and Motor Dealers Act 2000 (Qld) in the context of a residential property sale. The central issue is whether the warning statement required under the Act was properly attached to the contract as its first or top sheet, thus determining if the appellant had the right to terminate the contract and receive a refund of the deposit monies. The appeal was heard by the court of first instance, and the decision was subsequently appealed.

The legal issues addressed by the court included the interpretation of the statutory requirement that a Form 30c "warning statement" must be attached to the contract as its first or top sheet, and whether the timing of the attachment mattered. Specifically, the court had to determine if the warning statement had to be attached when the prospective buyer received the draft contract, when the buyer signed the contract, or by the time the parties became bound. Additionally, the court examined the relevance of subsequent legislative amendments in interpreting the original intent of the Property Agents and Motor Dealers Act 2000 (Qld).

The court considered various extrinsic matters, including the legislative history of the Act, and concluded that the statutory requirement was not strictly met as the warning statement was not attached to the contract as its first or top sheet. The court found that the order in which the documents were signed did not affect the statutory requirement, and thus, the appellant was not entitled to terminate the contract. The court also held that the subsequent amendments could not be used to ascertain the correct original intention of Parliament, adhering to the principle that the original text of the statute should be given effect unless there is clear ambiguity. The court dismissed the appeal and ordered the appellant to pay the respondents' costs of and incidental to the appeal.

Orders

Orders of the court

1. Dismiss the appeal

2. Appellant pay the first and second respondents’ costs of and incidental to the appeal to be assessed

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.

CITATION:	Johnston v Jewry & Anor [2007] QCA 188
PARTIES:	PAUL ANDREW JOHNSTON (plaintiff/appellant) v BEVERLEY JUNE JEWRY (defendant/first respondent) JEPADCAB PTY LTD ABN 41 174 748 793 trading as BEACHSIDE NORTH SHORE REALTY (third party/second respondent)
FILE NO/S:	Appeal No 11352 of 2006 SC No 8341 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	28 May 2007
JUDGES:	Jerrard JA, White and Atkinson JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Dismiss the appeal 2. Appellant pay the first and second respondents’ costs of and incidental to the appeal to be assessed
CATCHWORDS:	CONVEYANCING - RELATIONSHIP OF VENDOR AND PURCHASER - STATUTORY PROTECTION OF PURCHASERS - OTHER STATES - where respondent agreed to sell to the appellant residential property - where Property Agents and Motor Dealers Act 2000 (Qld) required the respondent to attach a Form 30c "warning statement" to the contract "as its first or top sheet" - where failure to do this gave the appellant the right to terminate the contract by notice of prior settlement - where the appellant purported to exercise this right - where the respondent rejected termination - where the order of documents was the Form 27b agent's disclosure statement, then the Form 30c warning statement, and then the contract - where the appellant signed the documents in no particular order but signed the contract before signing the warning statement - whether the warning statement was attached to the contract as its first or top sheet - whether the warning statement was required to be attached when the prospective buyer receives the draft contract, or when the buyer signs the contract, or by the time the parties became bound - whether the appellant was entitled to terminate the contract and receive a refund of the deposit monies STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSIDERATION OF EXTRINSIC MATTERS - LEGISLATIVE HISTORY OF ACT - where Property Agents and Motor Dealers Act 2000 (Qld) was subsequently amended - where the subsequent amendments clarified the sections the subject of the ambiguity - whether the amendments can be used to ascertain the correct original intention of Parliament Acts Interpretation Act1954 (Qld), s 33(10), s 33(11) Liquor and Other Acts Amendment Act2005 (Qld) Property Agents and Motor Dealers Act 2000 (Qld), s 138, s 363, s 364, s 365, s 365(1), s 365(3), s 366(1), s 366(2), s 366(3), s 366(4), s 367(2), s 367(4), s 368(1), s 598 Cape Brandy Syndicate v Inland Revenue Commissioners [1921] 2 KB 403, applied The Deputy Federal Commissioner of Taxes (South Australia) v Elder's Trustee and Executor Company Ltd (1937) 57 CLR 610, applied MNM Developments Pty Ltd v Gerrard [2005] QCA 230; [2005] 2 Qd R 515, followed Ormond Investments Co v Betts (1928) AC 143, applied Port…