Mirvac Queensland Pty Ltd v Wilson - [2010] QCA 322

SUPREME COURT OF QUEENSLAND

CITATION:

Mirvac Queensland Pty Ltd v Wilson [2010] QCA 322

PARTIES:

MIRVAC QUEENSLAND PTY LIMITED
ACN 060 411 207
(respondent/appellant)
v
CATHERINE FRANCES WILSON
(applicant/respondent)

FILE NO/S:

Appeal No 4196 of 2010
SC No 13896 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2010

JUDGES:

Margaret McMurdo P, Fraser JA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

CONVEYENCING – APPEAL AND NEW TRIAL – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNINGS AND LIKE MATTERS – where respondent agreed to purchase a residential apartment in a proposed community titles scheme from appellant – where appellant provided a disclosure statement under s 213 of the Body Corporate and Community Management Act 1997 (Qld), and subsequently a further statement under s 214 – where respondent asserted she would be materially prejudiced if compelled to complete the contract and purported to cancel it under s 214(4) of the Act – where the appellant submits that there was no inaccuracy in the disclosure statement – where the appellant contends that there was an error in the court finding that there was material prejudice to the respondent – whether the learned trial judge erred in finding that the statutory right to cancel the contract arose

Body Corporate and Community Management Act 1997 (Qld), s 4(g), s 214(1), s 214(4)(b), s 214(5), s 215(1), s 216
Building Units and Group Titles Act 1980 (Qld) (Repealed)

Chancellor Park Retirement Village Pty Ltd v Retirement Village Tribunal [2004] 1 Qd R 346; [2003] QSC 276, cited
Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129; [1983] HCA 44, cited
Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1993) 176 CLR 332; [1993] HCA 5, cited
Flight v Booth (1834) 1 Bing (NC) 370; 131 ER 1160; [1834] EngR 1087, cited
Gold Coast Carlton Pty Limited v Wilson [1985] 1 Qd R 182, cited
Gold Coast Carlton Pty Ltd v Kamalesvaran [1984] Q ConvR 54-144, cited
Hutchinson & Anor v Equititour & Ors Pty Ltd [2010] QCA 104, cited
Latitude Developments Pty Ltd v Haswell [2010] QSC 346, cited
McHale v Watson (1966) 115 CLR 199; [1966] HCA 13, cited
Sargent v ASL Developments Ltd (1974) 131 CLR 634; [1974] HCA 40, cited
Singh v Varinder Kaur (1985) 61 ALR 720, cited
Sommer v Abatti Holdings Pty Ltd [1992] 1 Qd R 300, cited
Stingel v The Queen (1990) 171 CLR 312; [1990] HCA 61, cited
Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331; [1979] FCA 85, cited
Vennard v Delorain P/L as…

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] QCA 322
Decision Date: 19 November 2010

CaseChat Overview and Summary

In the case of Mirvac Queensland Pty Ltd v Wilson, the dispute arose from the sale of a residential apartment in a proposed community titles scheme. The respondent agreed to purchase the apartment from the appellant, who provided a disclosure statement under section 213 of the Body Corporate and Community Management Act 1997 (Qld). Subsequently, a further statement was provided under section 214 of the Act. The respondent claimed she would be materially prejudiced if required to complete the contract and purported to cancel it under section 214(4) of the Act. The appellant argued there was no inaccuracy in the disclosure statement and contested the error in the court finding that there was material prejudice to the respondent.

The court was tasked with determining whether the learned trial judge erred in finding that the statutory right to cancel the contract arose. The primary issue was whether the trial judge correctly identified that the statutory right to cancel the contract existed, given the respondent's claim of material prejudice. The court had to consider the accuracy of the disclosure statement and the respondent's assertion of material prejudice in its assessment.

The court found that the trial judge did not err in concluding that the statutory right to cancel the contract arose. The court upheld the respondent's claim of material prejudice and found that the statutory right to cancel was valid. The appellant's argument regarding the accuracy of the disclosure statement was not sufficient to overturn the trial judge's decision. Consequently, the appeal was dismissed with costs awarded against the appellant.

Orders

Orders of the court

Appeal dismissed with costs

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 Wilson [2010] QCA 322
PARTIES:	MIRVAC QUEENSLAND PTY LIMITED ACN 060 411 207 (respondent/appellant) v CATHERINE FRANCES WILSON (applicant/respondent)
FILE NO/S:	Appeal No 4196 of 2010 SC No 13896 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 November 2010
DELIVERED AT:	Brisbane
HEARING DATE:	22 September 2010
JUDGES:	Margaret McMurdo P, Fraser JA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	CONVEYENCING – APPEAL AND NEW TRIAL – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNINGS AND LIKE MATTERS – where respondent agreed to purchase a residential apartment in a proposed community titles scheme from appellant – where appellant provided a disclosure statement under s 213 of the Body Corporate and Community Management Act 1997 (Qld), and subsequently a further statement under s 214 – where respondent asserted she would be materially prejudiced if compelled to complete the contract and purported to cancel it under s 214(4) of the Act – where the appellant submits that there was no inaccuracy in the disclosure statement – where the appellant contends that there was an error in the court finding that there was material prejudice to the respondent – whether the learned trial judge erred in finding that the statutory right to cancel the contract arose Body Corporate and Community Management Act 1997 (Qld), s 4(g), s 214(1), s 214(4)(b), s 214(5), s 215(1), s 216 Building Units and Group Titles Act 1980 (Qld) (Repealed) Chancellor Park Retirement Village Pty Ltd v Retirement Village Tribunal [2004] 1 Qd R 346; [2003] QSC 276, cited Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129; [1983] HCA 44, cited Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1993) 176 CLR 332; [1993] HCA 5, cited Flight v Booth (1834) 1 Bing (NC) 370; 131 ER 1160; [1834] EngR 1087, cited Gold Coast Carlton Pty Limited v Wilson [1985] 1 Qd R 182, cited Gold Coast Carlton Pty Ltd v Kamalesvaran [1984] Q ConvR 54-144, cited Hutchinson & Anor v Equititour & Ors Pty Ltd [2010] QCA 104, cited Latitude Developments Pty Ltd v Haswell [2010] QSC 346, cited McHale v Watson (1966) 115 CLR 199; [1966] HCA 13, cited Sargent v ASL Developments Ltd (1974) 131 CLR 634; [1974] HCA 40, cited Singh v Varinder Kaur (1985) 61 ALR 720, cited Sommer v Abatti Holdings Pty Ltd [1992] 1 Qd R 300, cited Stingel v The Queen (1990) 171 CLR 312; [1990] HCA 61, cited Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331; [1979] FCA 85, cited Vennard v Delorain P/L as…