MNM Developments Pty Ltd v Gerrard

[2005] QDC 10

DISTRICT COURT OF QUEENSLAND

CITATION:

MNM Developments Pty Ltd v Gerrard [2005] QDC 010

PARTIES:

MNM DEVELOPMENTS PTY LTD

Applicant

and

WILLIAM ALAN GERRARD

Respondent

FILE NO:

404/04

PROCEEDING:

Application

ORIGINATING COURT:

District Court Southport

DELIVERED ON:

4 February 2005

DELIVERED AT:

Southport

HEARING DATE:

31 January 2005

JUDGE:

Newton DCJ

ORDER:

Application dismissed

CATCHWORDS:

CONTRACT – TERMINATION – 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”

Property Agents and Motor Dealers Act 2000
Uniform Civil Procedure Rules

Cases cited:
MP Management (Aust) Pty Ltd v Churven & Anor [2002] QSC 320
Sidbent Pty Ltd & Anor v Reinisch [2003] QSC 203

COUNSEL:

Mr P Hackett – applicant   
Mr L Jurth -  respondent

SOLICITORS:

Schultz Toomey O’Brien – applicant   
Short Punch & Greatorix – respondent

1. The applicant plaintiff seeks summary judgment of its claim and related orders pursuant to r 292 of the Uniform Civil Procedure Rules.  More particularly, the applicant seeks the following orders:

   (a)a declaration that the plaintiff has validly terminated a contract dated 10 June 2003 for the purchase of a residential property at 18 Sunset Boulevard, Surfers Paradise, described as Lot 16, RP 81255, Parish of Gilston;

   (b)an order that the defendant refund the deposit in the sum of $62,500 paid under the contract, together with any accretions thereon to the plaintiff;

   (c)a declaration that the defendant’s purported termination of the contract on 19 March 2004 was unlawful; and

   (d)an order that the counterclaim be dismissed.

2. The facts and relevant chronology are not in dispute.  The following summary of facts is taken from the very helpful written submissions of both counsel who appeared at the hearing of the application.  In May 2003, the defendant agreed to sell, and the plaintiff agreed to purchase, a residential property at Surfers Paradise, situated at 18 Sunset Boulevard [“the Property”]. 

1. The following documents in the following order were sent by facsimile transmission on 26 May 2003 at 16:30 hours by the defendant’s agent, 2C Property, to Dr McGovern, a director of the plaintiff:

   (a)facsimile transmission cover sheet/covering letter;

   (b)Property Agents and Motor Dealers Act (“PAMD”) Form 27b (Selling Agent’s Disclosure to Buyer) (“the Disclosure Statement”);

   (c)PAMD Form 30c (Warning Statement) (“the Warning Statement”); and

   (d)REIQ Contract for Houses and Land (“the Contract”).

2. On the same day, McGovern executed the Disclosure Statement, the Warning Statement and the Contract in that order, being the same order in which they were transmitted.  It may be inferred that they were received in the same order.

1. By return facsimile transmission on the same day at 17:50 hours, McGovern sent the executed copies of the Disclosure Statement, the Warning Statement and the Contract (in that order) to 2C Property.

1. On or about 2 June 2003, 2C Property received from McGovern, and forwarded to the defendant’s solicitor, the original…