SUPREME COURT OF QUEENSLAND
CITATION:
Mirvac Queensland Pty Ltd v Horne & Ors [2009] QSC 269
PARTIES:
MIRVAC QUEENSLAND PTY LTD
ACN 060 411 207
(plaintiff)
v
JONATHAN AARON HORNE, LINDY ANN EVANS AS TRUSTEE FOR BLEEP ENERGY TRUST AND NICHOLAS ANDREW WOLFF
(defendants)FILE NO:
5500 of 2009
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
4 September 2009
DELIVERED AT:
Brisbane
HEARING DATE:
26 August 2009
JUDGE:
Applegarth J
ORDER:
1. Application dismissed.
2. The defendants pay the plaintiff’s costs of and incidental to the application to be assessed on a standard basis.
3. The plaintiff is directed to amend its reply and answer within seven days so as to specifically plead to subparagraph 4(e) of the defence.
CATCHWORDS:
CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER – MATTERS ARISING BETWEEN CONTRACT AND CONVEYANCE – OTHER CASES – where a disclosure statement given to pursuant to s 21 of the Land Sales Act 1984 (Qld) and s 213 of the Body Corporate and Community Management Act 1997 (Qld) for a proposed lot included a plan with a floor area of 177m2 – where the contract provided for the size of the lot to be up to 5% different from that shown in the disclosure statement – where a further statement given pursuant to s 214 of the Body Corporate and Community Management Act 1997 included a different plan with a floor area of 176m2 – whether the seller was required to give a rectification statement under s 22 of the Land Sales Act to the buyer
PROCEDURE – SUPREME COURT PROCEDURE – SUMMARY JUDGMENT – QUEENSLAND – POWER UNDER RULES OF COURT – SUMMARY JUDGMENT – where defendants claim for summary judgment on the plaintiff’s claim and their counterclaim – whether the plaintiff has no reasonable prospect for success in its claim
Acts Interpretation Act 1954 (Qld), s 14A(1)
Body Corporate and Community Management Act 1997 (Qld), s 213, s 214
Land Sales Act 1984 (Qld), s 21, s 22
Uniform Civil Procedure Rules 1999 (Qld), r 292, r 293Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] QCA 135, considered/applied
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, applied
DTR Nominees v Motor Homes Pty Ltd (1978) 138 CLR 423, cited
Hudpac Corporation Pty Ltd v Voros Instruments Pty Ltd [2009] QSC 275, cited
Lee v Surfers Paradise Beach Resort Pty Ltd [2008] 2 Qd R 249, cited
Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259, cited
Savoy Investments (Qld) Pty Ltd v Global Nominees Pty Ltd [2008] QCA 282, cited
Sunbird Plaza Pty Ltd v Boheto Pty Ltd [1983] 1 Qd R 248, cited
Theseus Exploration NL v Foyster (1972) 126 CLR 507, citedCOUNSEL:
J W Peden for the applicant
M D Martin for the respondentSOLICITORS:
Nicholsons Solicitors for the applicant
ClarkeKann for the respondent
The defendants apply…
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- Case
- [2009] QSC 269
- Decision Date
CaseChat Overview and Summary
The court had to determine if the variance in the floor area between the initial disclosure statement and the later statement was significant enough to require a rectification statement under the statutory provisions. The defendants moved for summary judgment on the plaintiff’s claim and their counterclaim, arguing that the plaintiff had no reasonable prospect of success. The court considered whether the discrepancy in the floor area between the disclosure statement and the later statement warranted a rectification statement under section 22 of the Land Sales Act.
The Supreme Court dismissed the application for summary judgment. The court found that there were genuine issues for trial concerning whether the floor area variance was material enough to require a rectification statement. Consequently, the defendants were ordered to pay the plaintiff's costs of and incidental to the application, to be assessed on a standard basis. Additionally, the plaintiff was directed to amend its reply and answer within seven days to specifically address subparagraph 4(e) of the defence.
Orders
Orders of the court
1. Application dismissed.
2. The defendants pay the plaintiff’s costs of and incidental to the application to be assessed on a standard basis.
3. The plaintiff is directed to amend its reply and answer within seven days so as to specifically plead to subparagraph 4(e) of the defence.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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