Mirvac Queensland Pty Ltd v Horne - [2009] QSC 269

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 293

Bolton 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, cited

COUNSEL:

J W Peden for the applicant
M D Martin for the respondent

SOLICITORS:

Nicholsons Solicitors for the applicant
ClarkeKann for the respondent

The defendants apply…

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: [2009] QSC 269
Decision Date: 4 September 2009

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Mirvac Queensland Pty Ltd v Horne revolved around a dispute regarding the sale of a proposed lot. The plaintiff, Mirvac Queensland Pty Ltd, alleged that the defendant, Horne, failed to provide a rectification statement under section 22 of the Land Sales Act 1984 (Qld) concerning the floor area of the lot. The disclosure statement given to the purchaser contained a plan with a floor area of 177m2, while the contract permitted a variance of up to 5%. A subsequent statement issued under section 214 of the Body Corporate and Community Management Act 1997 (Qld) showed a different plan with a floor area of 176m2. The central issue was whether this discrepancy necessitated a rectification statement from the seller to the purchaser.

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

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:	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 293 Bolton 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, cited
COUNSEL:	J W Peden for the applicant M D Martin for the respondent
SOLICITORS:	Nicholsons Solicitors for the applicant ClarkeKann for the respondent