DISTRICT COURT OF QUEENSLAND
CITATION:
Nichols Constructions P/L v Intensia P/L [2017] QDC 319
PARTIES:
NICHOLS CONSTRUCTIONS PTY LTD
(ACN 010 763 505)
(plaintiff)v
INTENSIA PTY LTD (ACN 144 893 363)
(defendant)FILE NO/S:
(Southport) D20/13
DIVISION:
PROCEEDING:
Civil trial
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON:
22 December 2017
DELIVERED AT:
Brisbane
HEARING DATE:
12, 13, 14 and 15 December 2016 and written submissions to 23 May 2017
JUDGE:
Andrews SC DCJ
ORDER:
1. Declare that the plaintiff is entitled to forfeit the deposit of $172,500.
2. The counterclaim is dismissed.
3. The parties are at liberty to apply in respect of interest and costs.
CATCHWORDS:
CONTRACT – RESCISSION – Where contract for sale of land – where land contaminated with asbestos after contract – whether seller knew land would become contaminated – whether breach of warranty that seller not aware of any facts or circumstances that may lead to the land as being classified as contaminated land within the meaning of the Environmental Protection Act 1994
CONTRACT – RESCISSION – Where seller warrants there is no outstanding obligation to give a notice under the Environmental Protection Act 1994 of notifiable activity being conducted on the land – where removal of asbestos from buildings into a bin for transport away from land sold – whether breach of warranty – whether asbestos was being “disposed of on the land” within the meaning of the Environmental Protection Act 1994
CONTRACT – RESCISSION – ESSENTIAL TERM – Whether obligation not to do anything regarding the property that may significantly alter it or result in later expense for the buyer is an essential term – whether by reason of asbestos contamination the seller breached that obligation – whether that breach gave the buyer a right to terminate
CONTRACT – RESCISSION – Where sewer line undisclosed on title and by contract – whether material error, encroachment or mistake – whether material to the buyer – whether material objectively – whether buyer entitled to terminate
STATUTES – INTERPRETATION – Where removal of asbestos from buildings into a bin for transport away from land – whether a “notifiable activity is being carried out on the land” within the meaning of the Environmental Protection Act 1994
Environmental Protection Act 1994 (Qld) section 371, 373, 374, schedule 3
Frankel v Paterson [2015] NSWSC 1307
Kelly v Arkdev Pty Ltd [2005] QSC 318
Liverpool Holdings Ltd v Gordon Lynton Car Sales Pty Ltd [1978] Qd R 279
Tarbet Investments Pty Ltd v Overett [1983] 1 Qd R 280
COUNSEL:
Thomae for the plaintiff
Charles Wilson for the defendant
SOLICITORS:
Parker Simmonds Solicitors & Lawyers for the plaintiff
Small Myers Hughes for the defendant
Issues
A buyer of land gave notice of termination of contract prior to settlement. The notice alleged asbestos contamination of the land. The primary issue is whether the buyer’s termination was valid. It maintains four discrete bases for validity of its termination.
The buyer…
Keep reading for free
Create a free CaseChat account to read Nichols Constructions P/L v Intensia P/L and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2017] QDC 319
- Decision Date
CaseChat Overview and Summary
The court examined whether the seller had knowledge of the asbestos contamination and if they breached the warranty by removing asbestos from the buildings into a bin for transport. The court also considered whether this activity constituted a "notifiable activity" under the Environmental Protection Act 1994. The court assessed whether the omission of the sewer line on the title and in the contract constituted a material error, encroachment, or mistake, and whether the buyer was entitled to terminate the contract on this basis. Additionally, the court examined whether the obligation not to alter the property in a way that would result in future expenses for the buyer was an essential term of the contract, and if the seller breached this term by allowing the contamination to occur.
The court found that the seller did not know about the asbestos contamination and, therefore, did not breach the warranty regarding the disposal of asbestos. The removal of asbestos from the buildings into a bin for transport did not constitute a "notifiable activity" under the Environmental Protection Act 1994. The omission of the sewer line on the title and in the contract was not a material error, encroachment, or mistake, and did not entitle the buyer to terminate the contract. The obligation not to alter the property in a way that would result in future expenses for the buyer was not considered an essential term of the contract. Consequently, the court ruled in favour of the defendant, dismissing the plaintiff's claim for rescission.
The court declared that the plaintiff is entitled to forfeit the deposit of $172,500. The counterclaim was dismissed, and the parties were at liberty to apply in respect of interest and costs.
Orders
Orders of the court
1. Declare that the plaintiff is entitled to forfeit the deposit of $172,500.
2. The counterclaim is dismissed.
3. The parties are at liberty to apply in respect of interest and 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.