M P Management (Aust) P/L v Churven - [2002] QSC 320

SUPREME COURT OF QUEENSLAND

CITATION:

M P Management (Aust) P/L v Churven & Anor [2002] QSC 320

PARTIES:

M P MANAGEMENT (AUST) PTY LTD ACN 069 812 424
(applicant)
PHILIP STUART CHURVEN and YLVA MARIA KJELLBERG
(respondents)

FILE NO:

1704 of 2002

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2002

JUDGE:

Muir J

CATCHWORDS:

CONTRACT – TERMINATION – WAIVER – alleged breach of the Property Agents and Motor Dealers Act 2000 – construction of the Act - where application seeks declaration that contract for sale of land validly terminated by notice – whether a warning statement was attached to contract – meaning of “attached” – whether waiver of right of termination – whether expenses incurred after notification of right to terminate are recoverable as reasonable

CONTRACT – FORMATION – time of formation of contract – whether a warning statement was signed and dated before a witness – meaning of “sign” and “attestation”

Powers of Attorney Act 1948
Property Agents and Motor Dealers Act 2000, s 365 s 366, s 367
Property Law Act 1974 s 45
Succession Act 1981, s 7

Beckwith v R (1976) 12 ALR 333
Bosaid v Andrey [1963] VR 465
Clohesy v Maher (1880) 6 VLR (L) 357

Cohen v Roche [1927] 1 KB 169
Elliott Common School District No 48 v Country Board of School Trustees Tex Civ App, 76 SW 2d 786
Goodman v J Eban Ltd [1954] 1 QB 550 CA
Kammins Co v Zenith Investments (1971) AC 850
Minchin v Public Curator of Queensland (1965) ALR 91
Muirhead v Commonwealth Bank (1996) 139 ALR 561
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Schneider v Norris (1814) 2 M & S 286
Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1977) 16 ALR 23
The Commonwealth v Verwayen (1990) 170 CLR 394

COUNSEL:

M Burnett for the applicant
D Campbell for the respondent

SOLICITORS:

Kelly Lawyers for the applicant
Corums Lawyers for the respondent

Introduction

The applicant, M P Management (Aust) Pty Ltd, entered into a contract dated 11 October 2001 with the respondents, Philip Churven and Ylva Kjellberg, for the sale and purchase of a parcel of vacant residential land located at 8 Annie Street, Hamilton. On 6 December 2001 the applicant purported to terminate the contract by notice given under s 366 of the Property Agents and Motor Dealers Act 2000 (“the Act”). In this application it seeks: a declaration that the contract was validly terminated by the notice; an order that the respondent authorise its agent, Damian Walsh Real Estate, to release to the applicant $46,000 held by way of deposit under the contract and an order that the respondent pay the applicant $10,620.14 by way of legal and other expenses incurred pursuant to the contract.

Events preceding the entering into of the contract

During the afternoon of 8 October 2001, Mr Patrick Farrugia, a director of the applicant…

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: [2002] QSC 320
Decision Date: 9 October 2002

CaseChat Overview and Summary

In the case of M P Management (Aust) P/L v Churven, the parties were involved in a dispute regarding the sale of land, which included questions about the validity of the contract's termination and the interpretation of the Property Agents and Motor Dealers Act 2000. The dispute arose when M P Management sought a declaration that a contract for the sale of land had been validly terminated by a notice of termination. Churven, the respondent, argued that the notice was invalid because it did not contain the required warning statement, and that the contract was formed at a later time when the warning statement was signed and witnessed. The court was required to decide whether the warning statement was properly "attached" to the notice, and whether the right to terminate the contract had been waived. Additionally, the court had to determine if expenses incurred after the notification of the right to terminate were recoverable as reasonable.

The court began by examining the meaning of "attached" in the context of the statutory requirement for a warning statement to be included with the notice of termination. The court found that the warning statement did not need to be physically attached to the notice, but rather could be incorporated by reference. This interpretation aligned with the purpose of the statute, which was to ensure that the purchaser was informed of their right to terminate the contract. The court also considered whether the right to terminate had been waived by the conduct of the parties. The court found that no waiver had occurred, as there was no clear and unequivocal conduct that indicated an intention to waive the right to terminate.

The court concluded that the warning statement was effectively attached to the notice, and that the right to terminate had not been waived. Furthermore, the court held that expenses incurred after the notification of the right to terminate were not recoverable as reasonable, as they were incurred after the right to terminate had been exercised. The court's decision clarified the requirements for the termination of contracts for the sale of land under the Property Agents and Motor Dealers Act 2000, and provided guidance on the interpretation of key terms in the Act.

In conclusion, the court granted a declaration that the contract for the sale of land was validly terminated by the notice of termination. The court found that the warning statement was properly incorporated by reference, and that the right to terminate had not been waived. Additionally, the court held that expenses incurred after the notification of the right to terminate were not recoverable as reasonable. This decision provides clarity on the requirements for the termination of contracts for the sale of land under the Property Agents and Motor Dealers Act 2000, and the interpretation of key terms in the Act.

Orders