MNM Developments Pty Ltd v Gerrard

Case [2005] QCA 230

SUPREME COURT OF QUEENSLAND

CITATION:

MNM Developments P/L v Gerrard [2005] QCA 230

PARTIES:

MNM DEVELOPMENTS PTY LTD ACN 103 948 509
(applicant/applicant)
v
WILLIAM ALAN GERRARD
(respondent/respondent)

FILE NO/S:

Appeal No 1323 of 2005
DC No 404 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

24 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

14 June 2005

JUDGES:

de Jersey CJ, Williams JA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Leave to appeal granted1.   

Appeal dismissed2.   

The appellant pay the respondent’s costs of and incidental to the appeal to be assessed3.   

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – ELECTION AND RESCISSION – STATUTE GIVING RIGHT TO AVOID CONTRACT – where respondent agreed to sell to appellant residential property – where Property Agents and Motor Dealers Act 2000 (Qld) required respondent to “attach” a “warning statement” to the contract “as its first or top sheet” – where failure to do this gave appellant right to terminate contract by notice prior to settlement – where appellant purported to exercise this right – where respondent rejected termination – where warning statement sent as part of continuous fax, comprising disclosure statement, warning statement, contract and directors’ guarantee – where appellant signed disclosure statement, warning statement and contract, in that order, and faxed, and separately sent original documents, back to respondent – where respondent then executed original contract – whether “attach” requires some physical joinder or incorporation – whether warning statement was attached to the contract as its first or top sheet – whether warning statement required to be attached when prospective buyer receives draft contract, when buyer signs contract or by time parties become bound – whether the appellant was entitled to a declaration that it had validly terminated the contract and a refund of deposit monies

District Court of Queensland Act 1967 (Qld), s 118(3)
Property Agents and Motor Dealers Act 2000 (Qld), s 138(1), s 363, s 365, s 366(1), s 366(2), s 366(4), s 367(2)

Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246, cited
Horinack v Suncorp Metway Insurance Ltd [2000] QCA 441; [2001] 2 Qd R 266, cited
M P Management (Aust) P/L v Churven & Anor [2002] QSC 320, SC No 1704 of 2002, 9 October 2002, approved
Sidbent P/L & Anor v Reinisch [2003] QSC 203, SC No 1304 of 2003, 15 July 2003, not followed

COUNSEL:

H B Fraser QC, with P W Hackett, for the applicant
A J H Morris QC, with L Jurth, for the respondent

SOLICITORS:

Schultz Toomey O’Brien Lawyers for the applicant
Short Punch & Greatorix for respondent

  1. de JERSEY CJ: By a contract dated 10 June 2003, the respondent agreed to sell to the appellant, for the sum…

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Details
AGLC
MNM Developments Pty Ltd v Gerrard [2005] QCA 230
Case
[2005] QCA 230
Decision Date

CaseChat Overview and Summary

MNM Developments Pty Ltd, the appellant, sought to terminate a contract for the sale of residential property with Gerrard, the respondent. The appellant contended that the respondent had breached the Property Agents and Motor Dealers Act 2000 (Qld) by not attaching a warning statement to the contract as its first or top sheet, a failure which the appellant argued entitled them to terminate the contract. The respondent disputed the appellant's interpretation of the statutory requirement and denied the validity of the termination. The Queensland Court of Appeal was tasked with determining the correct interpretation of the statutory requirement and whether the appellant was entitled to terminate the contract and recover their deposit.

The court considered several key legal issues, including the meaning of the term "attach" within the context of the statute, whether the warning statement needed to be attached at the time the prospective buyer received the draft contract, when the buyer signed the contract, or by the time the parties became bound. Additionally, the court had to decide whether the warning statement was effectively attached when it was sent as part of a continuous fax containing the disclosure statement, warning statement, contract, and directors' guarantee, and subsequently signed and returned by the appellant.

The court determined that the term "attach" did not necessarily require a physical joinder or incorporation but could include a warning statement sent as part of a continuous fax. The court found that the warning statement was attached to the contract as its first or top sheet in the fax, satisfying the statutory requirement. Consequently, the court held that the appellant had not been entitled to terminate the contract, as the statutory condition for termination had been met. The court also ruled that the appellant was not entitled to a declaration that it had validly terminated the contract or a refund of deposit monies.

The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs of and incidental to the appeal to be assessed. This outcome confirmed that the respondent's method of including the warning statement within the continuous fax satisfied the statutory requirement, and thus, the appellant's termination of the contract was invalid.

Orders

Orders of the court

Leave to appeal granted1.

Appeal dismissed2.

The appellant pay the respondent’s costs of and incidental to the appeal to be assessed3.

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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