Modi & Clements v SDW Projects Pty Ltd - [2013] QCA 221

SUPREME COURT OF QUEENSLAND

CITATION:

Modi & Clements v SDW Projects Pty Ltd & Ors [2013] QCA 221

PARTIES:

In Appeal No 268 of 2013:
SANJU MODI
(appellant)
v
SDW PROJECTS PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT)
ACN 110 335 923
(first respondent)
LISA JANE CLEMENTS
(second respondent)
HOLDING REDLICH (A FIRM)
(third respondent)
THOMAS BRADLEY
(fourth respondent)

In Appeal No 233 of 2013:
LISA JANE CLEMENTS
(appellant)
v
SDW PROJECTS PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT)
ACN 110 335 923
(first respondent)
SANJU MODI
(second respondent)
HOLDING REDLICH (A FIRM)
(third respondent)
THOMAS BRADLEY
(fourth respondent)

FILE NO/S:

Appeal No 233 of 2013
Appeal No 268 of 2013
SC No 10460 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeals

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2013

JUDGES:

Holmes and Gotterson JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeals dismissed with costs.

CATCHWORDS:

CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNING AND LIKE MATTERS – where the appellants were solicitors retained by the first respondent to assist in conveying units in a proposed development – where buyers under the contracts of sale withdrew their offers to purchase, arguing that they were not bound because of non-compliance with s 365(2A)(c)(ii) of the Property Agents and Motor Dealers Act 2000 – where the first respondent obtained a declaration that letters sent by the appellants to the buyers’ solicitors, returning executed contracts with warning statements and information sheets, did not direct the buyers' attention to the warning and information sheet, as required by s 365(2A)(c)(ii) – whether reference in the letters to the “Contract of Sale” could be regarded as encompassing the warning statement and information sheet – whether the context in which the letters were received or the form of the documents obviated the need to make specific reference to the relevant documents – whether the letters met the requirements of s 365(2A)(c)(ii)

Property Agents and Motor Dealers Act 2000 (Qld), s 10, s 363, s 364, s 365, s 366, s 366A, s 366B

Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55, cited
Boylan v Gallagher [2012] 1 Qd R 420; [2011] QCA 240, considered
Day & Dent Constructions Pty Ltd v North Australian Properties Pty Ltd (1982) 150 CLR 85; [1982] HCA 20, cited
Hedley Commercial Property Services Pty ltd v BRCP Oasis Land Pty Ltd [2008] QSC 261, considered
MNM Developments Pty Ltd v Gerrard [2005] 2 Qd R 515; [2005] QCA 230, considered
SDW Projects Pty Ltd v Modi & Ors [2012] QSC 400, related

COUNSEL:

R J Anderson for the appellant/second respondent, Clements
D Clothier QC, with R Jackson, for the appellant/second respondent, Modi
D Kelly QC, with…

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.

Continue reading Modi & Clements v SDW Projects Pty Ltd

Details

AGLC: Modi & Clements v SDW Projects Pty Ltd & Ors [2013] QCA 221
Case: [2013] QCA 221
Decision Date: 9 August 2013

CaseChat Overview and Summary

The appeal before the court involved Modi & Clements, acting as solicitors, and SDW Projects Pty Ltd, a property developer. The dispute centred around the sale of units in a proposed development. The buyers had withdrawn their offers to purchase, claiming non-compliance with s 365(2A)(c)(ii) of the Property Agents and Motor Dealers Act 2000. This section requires vendors to ensure that the contract of sale is accompanied by a warning statement and information sheet. The first respondent sought a declaration that the letters sent by the appellants to the buyers’ solicitors, returning executed contracts with warning statements and information sheets, did not specifically direct the buyers' attention to the warning and information sheet as required by the statutory provision.

The primary legal issue was whether the reference in the letters to the “Contract of Sale” could be considered sufficient to encompass the warning statement and information sheet. Additionally, the court needed to determine whether the context in which the letters were received or the form of the documents obviated the need for specific reference to the relevant documents, and if the letters met the requirements of s 365(2A)(c)(ii).

The court found that the letters did not sufficiently direct the buyers’ attention to the warning and information sheet. The reference to the “Contract of Sale” was not deemed to encompass the warning statement and information sheet. The court held that the context and form of the documents did not eliminate the need for a specific reference to the relevant documents. Consequently, the letters did not comply with the statutory requirement, leading to the buyers' entitlement to withdraw from the contracts of sale. The appeals were dismissed with costs.

Orders

Orders of the court

Appeals dismissed with costs.

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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CITATION:	Modi & Clements v SDW Projects Pty Ltd & Ors [2013] QCA 221
PARTIES:	In Appeal No 268 of 2013: SANJU MODI (appellant) v SDW PROJECTS PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) ACN 110 335 923 (first respondent) LISA JANE CLEMENTS (second respondent) HOLDING REDLICH (A FIRM) (third respondent) THOMAS BRADLEY (fourth respondent) In Appeal No 233 of 2013: LISA JANE CLEMENTS (appellant) v SDW PROJECTS PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) ACN 110 335 923 (first respondent) SANJU MODI (second respondent) HOLDING REDLICH (A FIRM) (third respondent) THOMAS BRADLEY (fourth respondent)
FILE NO/S:	Appeal No 233 of 2013 Appeal No 268 of 2013 SC No 10460 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeals
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	9 August 2013
DELIVERED AT:	Brisbane
HEARING DATE:	16 May 2013
JUDGES:	Holmes and Gotterson JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeals dismissed with costs.
CATCHWORDS:	CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNING AND LIKE MATTERS – where the appellants were solicitors retained by the first respondent to assist in conveying units in a proposed development – where buyers under the contracts of sale withdrew their offers to purchase, arguing that they were not bound because of non-compliance with s 365(2A)(c)(ii) of the Property Agents and Motor Dealers Act 2000 – where the first respondent obtained a declaration that letters sent by the appellants to the buyers’ solicitors, returning executed contracts with warning statements and information sheets, did not direct the buyers' attention to the warning and information sheet, as required by s 365(2A)(c)(ii) – whether reference in the letters to the “Contract of Sale” could be regarded as encompassing the warning statement and information sheet – whether the context in which the letters were received or the form of the documents obviated the need to make specific reference to the relevant documents – whether the letters met the requirements of s 365(2A)(c)(ii) Property Agents and Motor Dealers Act 2000 (Qld), s 10, s 363, s 364, s 365, s 366, s 366A, s 366B Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55, cited Boylan v Gallagher [2012] 1 Qd R 420; [2011] QCA 240, considered Day & Dent Constructions Pty Ltd v North Australian Properties Pty Ltd (1982) 150 CLR 85; [1982] HCA 20, cited Hedley Commercial Property Services Pty ltd v BRCP Oasis Land Pty Ltd [2008] QSC 261, considered MNM Developments Pty Ltd v Gerrard [2005] 2 Qd R 515; [2005] QCA 230, considered SDW Projects Pty Ltd v Modi & Ors [2012] QSC 400, related
COUNSEL:	R J Anderson for the appellant/second respondent, Clements D Clothier QC, with R Jackson, for the appellant/second respondent, Modi D Kelly QC, with…