Latitude Developments Pty Ltd v Haswell - [2010] QSC 346

SUPREME COURT OF QUEENSLAND

CITATION:

Latitude Developments Pty Ltd v Haswell [2010] QSC 346

PARTIES:

LATITUDE DEVELOPMENTS PTY LTD

ACN 110 660 510
(plaintiff)
v
ROBERT JOHN HAMILTON HASWELL
(defendant)

FILE NO:

SC No 7672 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

15 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

18 December 2009; 19 March 2010; last submissions received 18 June 2010

JUDGE:

Peter Lyons J

ORDER:

The application for summary judgment should be granted

CATCHWORDS:

PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS - SUMMARY JUDGMENT - where the plaintiff carried out the development of a resort – where a number of lots and common property under the Body Corporate and Community Management Act 1997 (Qld) were created – where the defendant entered into a contract to purchase one of the units - where the plaintiff gave notice of changes to the project shortly before the settlement date – where those changes affected the creation of common property – where the defendant gave notice of termination of the contract – where the plaintiff has sued the defendant for specific performance of the contract - whether the defendant can seek summary judgment – whether the defendant can rely on any rights said to accrue under the Land Sales Act 1984 (Qld) and the Body Corporate and Community Management Act 1997 (Qld)

CONVEYANCING - THE CONTRACT AND CONDITIONS OF SALE - OTHER PARTICULAR CONDITIONS - OTHER CASES – where the plaintiff advised of changes to the project - where the defendant submits that under the Land Sales Act 1984 (Qld), the plaintiff was required to give to the defendant a rectification notice – where the defendant submits that because no rectification notice was given, the plaintiff could not call for settlement when it did – where the defendant submits that his termination letter effectively terminated the contract – whether the identity of the lot was changed by the changes to the project – whether the plaintiff was required to give notice under the Land Sales Act 1984 (Qld)

CONVEYENCING – STATUTORY OBLIGATIONS OR
RESTRICTIONS RELATING TO CONTRACT FOR SALE
– PROTECTION OF PURCHASERS – OBLIGATIONS ON
VENDOR: DISCLOSURE, WARNINGS AND LIKE

MATTERS - where the defendant submitted that the staging of the development brought the provisions of s 214 of the Body Corporate and Community Management Act 1997 (Qld) into operation – whether s 214 gives the defendant the right to cancel the contract – whether the defendant would have been materially prejudiced if compelled to complete the contract – whether the defendant validly terminated the contract

Body Corporate and Community Management Act 1997 (Qld), s 35, s 209, s 213, s 214, s 215, s 217
Land Sales Act 1984 (Qld), s 21, s 22
Trade Practices Act 1974 (Cth), s 52, s 53

Bankmist Holdings Pty Ltd v Azina Holdings Pty Ltd [2009] WASC 230, not followed
Chancellor Park Retirement Village Pty Ltd v Retirement Village Tribunal [2004]…

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.

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Details

Case: [2010] QSC 346
Decision Date: 15 September 2010

CaseChat Overview and Summary

The case of Latitude Developments Pty Ltd v Haswell involved a dispute between the plaintiff, Latitude Developments, a company involved in the development of a resort, and the defendant, Mr Haswell, who had contracted to purchase one of the resort units. The primary issue before the court was whether the defendant could seek summary judgment against the plaintiff's action for specific performance of the contract. The dispute arose when Latitude Developments notified Mr Haswell of changes to the resort project shortly before the settlement date, which affected the creation of common property. Mr Haswell responded by terminating the contract, leading to the plaintiff's legal action for specific performance.

The legal issues the court had to address included whether Mr Haswell could rely on any rights under the Land Sales Act 1984 (Qld) and the Body Corporate and Community Management Act 1997 (Qld). Mr Haswell argued that because Latitude Developments did not provide a rectification notice as required under the Land Sales Act, the plaintiff could not lawfully call for settlement. Furthermore, he contended that his termination letter effectively ended the contract. Latitude Developments, on the other hand, argued that the changes to the project did not alter the identity of the lot in question and that no statutory notice was necessary.

The court determined that the changes made by Latitude Developments did not alter the identity of the lot in question, and therefore, no statutory notice under the Land Sales Act was required. Additionally, the court found that Mr Haswell's termination of the contract was not valid. Based on these findings, the court concluded that the plaintiff's application for summary judgment should be granted. The court ruled that the defendant's claims did not have a reasonable chance of success, and thus, the plaintiff was entitled to specific performance of the contract.

Orders

Orders of the court

The application for summary judgment should be granted

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:	Latitude Developments Pty Ltd v Haswell [2010] QSC 346
PARTIES:	LATITUDE DEVELOPMENTS PTY LTD ACN 110 660 510 (plaintiff) v ROBERT JOHN HAMILTON HASWELL (defendant)
FILE NO:	SC No 7672 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	15 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	18 December 2009; 19 March 2010; last submissions received 18 June 2010
JUDGE:	Peter Lyons J
ORDER:	The application for summary judgment should be granted
CATCHWORDS:	PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS - SUMMARY JUDGMENT - where the plaintiff carried out the development of a resort – where a number of lots and common property under the Body Corporate and Community Management Act 1997 (Qld) were created – where the defendant entered into a contract to purchase one of the units - where the plaintiff gave notice of changes to the project shortly before the settlement date – where those changes affected the creation of common property – where the defendant gave notice of termination of the contract – where the plaintiff has sued the defendant for specific performance of the contract - whether the defendant can seek summary judgment – whether the defendant can rely on any rights said to accrue under the Land Sales Act 1984 (Qld) and the Body Corporate and Community Management Act 1997 (Qld) CONVEYANCING - THE CONTRACT AND CONDITIONS OF SALE - OTHER PARTICULAR CONDITIONS - OTHER CASES – where the plaintiff advised of changes to the project - where the defendant submits that under the Land Sales Act 1984 (Qld), the plaintiff was required to give to the defendant a rectification notice – where the defendant submits that because no rectification notice was given, the plaintiff could not call for settlement when it did – where the defendant submits that his termination letter effectively terminated the contract – whether the identity of the lot was changed by the changes to the project – whether the plaintiff was required to give notice under the Land Sales Act 1984 (Qld) CONVEYENCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNINGS AND LIKE MATTERS - where the defendant submitted that the staging of the development brought the provisions of s 214 of the Body Corporate and Community Management Act 1997 (Qld) into operation – whether s 214 gives the defendant the right to cancel the contract – whether the defendant would have been materially prejudiced if compelled to complete the contract – whether the defendant validly terminated the contract Body Corporate and Community Management Act 1997 (Qld), s 35, s 209, s 213, s 214, s 215, s 217 Land Sales Act 1984 (Qld), s 21, s 22 Trade Practices Act 1974 (Cth), s 52, s 53 Bankmist Holdings Pty Ltd v Azina Holdings Pty Ltd [2009] WASC 230, not followed Chancellor Park Retirement Village Pty Ltd v Retirement Village Tribunal [2004]…