Kirkbeck and Kirkbeck v Hamilton

[1993] QCA 567

IN THE COURT OF APPEAL	[1993] QCA 567
SUPREME COURT OF QUEENSLAND	Appeal No. 55 of 1993
Before	The President Mr Justice Pincus Mr Justice Moynihan

[Kirkbeck v Hamilton]

BETWEEN:

KENNETH JOHN KIRKBECK and

CHERYL ANN KIRKBECK

(Applicants) Appellants

AND:

STEPHEN MICHAEL HAMILTON and

TRACEY CATHERINE HAMILTON

(Respondents) Respondents

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21/12/1993

This is an appeal from a judgment in the Trial Division on 17 March 1993 whereby it was declared that a contract for the sale of a property dated 10 December 1991 between the appellants as vendors and the respondents as purchasers was validly terminated by the respondents on 16 December 1991.

The respondents relied upon clause 21 of the contract which, so far as presently material, provided:

"21 PROPERTY ADVERSELY AFFECTED

21.1 Should it be established that at the date of

this Contract:

...

(b)  all permissions, consents and approvals required from the relevant local authority or other body having jurisdiction for the construction of the improvements on the Land have not been obtained or having been obtained, have not been complied with in all respects;

...

and any such facts are not disclosed in the special conditions or elsewhere herein the Purchaser made by notice in writing to the Vendor given on or before the date for completion terminate the contract in which event all deposit and other monies received by the Vendor or the Stakeholder on account of the purchase price shall be refunded to the Purchaser by the Vendor or the Stakeholder as the case may be but without interest costs or damages and the same shall be accepted by the Purchaser in full and final satisfaction of all claims."

The property sold by the appellants to the respondents, a dwelling at Robina on the Gold Coast, included an unfenced swimming pool. In September 1991, the appellants had applied to the relevant local authority, the Albert Shire Council, for an inspection and report in relation to the fencing of the swimming pool. The Council wrote to the appellant on 10 and 24 September 1991 in the following terms:

(10 September 1991)

"POOL FENCING - 26 MONTEGO COURT ROBINA

I refer to your recent request for an inspection and report on your swimming pool fencing.

You are advised that an inspection of the fencing was carried out on the 6 September, 1991 by an Officer of the Health Department. It was found that the fencing did not comply with the requirements of Section H of the Local Government Act 1936-1990 in that;

1.   The swimming pool is not fenced in accordance with Section 2 of Australian Standard 1926-1986. (copy enclosed);

2.   Access from the house to the swimming pool is not restricted in accordance with the provisions of Section 9.2.2 of Australian Standard 2818-1986 (copy enclosed);

You are further advised that pursuant to that Act all works associated with your swimming pool fence must be completed prior to the 31 March 1992, or within 60 days of completion of a sale of the property, whichever is the sooner.

A copy of the relevant standards are enclosed for your assistance."

and (24 September 1991)

TYPE/CLASS BUILDING DATE RECORD OF INSPECTION AND DATES

APPROVAL	OF
NO.	APPROVAL

FOOTING	SLAB	FRAME	FINAL
INSPECTION	INSPECTION	INSPECTION	INSPECTION

ELLING	B889793 27.01.89	APPROVED	APPROVED	APPROVED	APPROVED
- INSTATED	27.01.91	03.02.89	16.02.89	17.09.90	17.09.91

SWIMMING	B889792	16.04.89	(STEEL)	NOT	NOT	NOT APPROVED
POOL	APPROVED	APPLICABLE	APPLICABLE	06.09.91
29.03.89

B914312 NOT NOT NOT NOT NOT

APPLICABLE APPLICABLE APPLICABLE APPLICABLE APPLICABLE

BUILDING INSPECTION REPORT

IN REFERENCE TO THE BUILDING INSPECTION REQUESTED ON THE ABOVE MENTIONED PROPERTY, I WISH TO ADVISE THAT A SITE INSPECTION AND A SEARCH OF COUNCIL'S RECORDS REVEALED THE FOLLOWING:

...re-inspection was carried out at the above property.

Further to our previous Inspection Report Number 019435 issued 12 September 1991, Item 1 in the above report has been completed. The studied area has been ....... as required.

..... inspection of the swimming pool fencing revealed the

following-

.... Swimming pool fencing to be made to comply with new

fencing legislation (..... attached)

..... advised that a pool must be fenced in accordance
with AS 1926 - 1986 and ...2818 - 1986 by 31 March 1992
otherwise penalty provisions may apply.

$980.00 plus $480.00 per day if a continuing offence).

.....:  Suspended slab inspection approved 21.11.89

.....: Floor thickenings inspection approved 10.02.89

Engineer's Certificate has been received for footing
inspection."

The Chamber Judge, who determined the matter on Originating Summons said:

"This letter of 10 September 1991 could not be a determination by the Council under s.49H(12) because the Act [The Local Government (Swimming Pool Fencing) Amendment Act 1991] was not then in force. Despite this the letter from the Council of the Shire of Albert to the Kirkbecks dated 24 September 1991 was such a determination and that letter advised the Kirkbecks that the pool had to be fenced to comply with `the new fencing legislation' (obviously a reference to s.49H) by 31 March 1992.

...

Before me, the parties treated the letter dated 24 September 1991 from the Council of the Shire of Albert as an 'approval required' and within the opening words of Condition 21.1(b). I thought this was a correct approach given that s.49H ... which had come into force on 14 September 1991:-

(a)  required the Kirkbecks to construct and maintain fencing around their outdoor swimming pool (s.49H(4));

(b) prescribed a time for compliance with s.49H(11);

(c)  prescribed a procedure whereby the Kirkbecks as owners of the residential land on which there was the existing swimming pool might apply in writing to the relevant local authority ie. Council of the Shire of Albert, for written advice, whether or not the swimming pool fencing complied with sub-sections 49H(4)(see s.49H(12)).

In the events which happened, the Kirkbecks did apply for such written advice. Had they not applied or had not received the Council's advice by 10 December 1991 the position may well have been different in that, as at 10 December 1991 there arguably may not have been in existence a 'permission, consent or approval' within the opening words of Condition 21.1(b)."

The position adopted by both parties below according to the Chamber Judge, namely, that the letter dated 24 September 1991 from the Albert Shire Council was "an `approval required' and within the opening words of Condition 21.1(b)", was plainly incorrect, both on the literal effect of that letter and on the proper construction of section 49H of the Local Government Act 1936, as amended by, inter alia, the Local Government (Swimming Pool Fencing) Amendment Act 1991.

The point is so clear that it is unnecessary to set out the material provisions of the legislation. There is nothing in the Act by which "permissions, consents and approvals [in respect of fencing to swimming pools are] required from the relevant local authority": clause 21(1)(b). There is an obligation under the Act to fence outdoor swimming pools which is directly imposed by sub-section 49H(4) and which was required to be performed within a time limited by section 49H(11). Leaving aside a local authority's power to grant variations or exemptions or to pass by-laws (which were not suggested to apply in this case), a local authority's relevant authority is restricted to the giving of advice "whether or not the swimming pool fencing complies with sub-section (4)": sub- section 49H(12).

There is therefore a short answer which entitles the appellants to succeed in this matter. There was no scope for the operation of clause 21(1)(b) of the contract between the parties because there was no material permission, consent or approval required from the local authority.

Accordingly, the appeal is allowed and an appropriate declaration must be made on the originating summons. The respondents must pay the appellants' taxed costs of this proceeding in the Trial Division and this appeal, but are granted an Indemnity Certificate under section 15 of the Appeal Costs Fund Act 1973.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 55 of 1993
Brisbane [Kirkbeck v. Hamilton]
BETWEEN:

KENNETH JOHN KIRKBECK and

CHERYL ANN KIRKBECK

(Applicants) Appellants

AND:

STEPHEN MICHAEL HAMILTON and

TRACEY CATHERINE HAMILTON

(Respondents) Respondents

_______________________________________________________________

__

THE PRESIDENT
PINCUS J.A.

MOYNIHAN S.J.A.

_______________________________________________________________

__

Judgment delivered 21/12/1993

REASONS FOR JUDGMENT - THE COURT

_______________________________________________________________

__

APPEAL ALLOWED.
DECLARE THAT THE CONTRACT OF 10 DECEMBER 1991 MENTIONED IN THE
APPELLANTS' ORIGINATING SUMMONS WAS NOT VALIDLY TERMINATED BY
THE RESPONDENTS ON THE GROUND DEPENDENT ON CL.21.1(b) OF THE
SAID CONTRACT.
THE RESPONDENTS MUST PAY THE APPELLANTS' TAXED COSTS OF THIS
PROCEEDING IN THE TRIAL DIVISION AND THIS APPEAL.
THE RESPONDENTS ARE GRANTED AN INDEMNITY CERTIFICATE UNDER S.

15 OF THE APPEAL COSTS FUND ACT 1973.

_______________________________________________________________

__

CATCHWORDS:	CONTRACT - SALE OF LAND - Swimming pool unfenced - cl. 21.1(b) REIQ contract - whether "permission, consent or approval" required from local authority pursuant to s. 49H(12) Local Government Act - whether respondents validly terminated contract
Counsel:	W. Sofronoff Q.C. with Mr G. Brandis for the Appellants R.G. Bain Q.C. with him Mr A. Crowe for the Respondents
Solicitors:	Robert Lehn & Co. for the Appellants Gudkovs Power & Spencer for the Respondents
Date(s) of Hearing:	30 July 1993