Sidbent Pty Ltd v Reinisch

[2003] QSC 203

SUPREME COURT OF QUEENSLAND

CITATION:

Sidbent P/L & Anor v Reinisch [2003] QSC 203

PARTIES:

SIDBENT PTY LTD ACN 003 592 452
(first applicant)
UNILUX PTY LTD ACN 000 789 711
(second applicant)
FRANK REINISCH
(respondent)

FILE NO/S:

SC No 1304 of 2003

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 July 2003

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2003

JUDGE:

White J

ORDER:

The application be dismissed

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – where buyer alleged failure to comply with requirements of Body Corporate and Community Management Act 1997 (Qld) and Property Agents and Motor Dealers Act 2000 (Qld) – where buyer purported to terminate contracts – whether defendant has no real prospect of successfully defending plaintiff’s claim

Body Corporate and Community Management Act 1997 (Qld), s 163
Property Agents and Motor Dealers Act 2000 (Qld), s 366, s 367

M P Management (Aust) P/L v Churven & Anor [2002] QSC 320

COUNSEL:

K N Wilson SC for the applicants
D A Savage SC for the respondent

SOLICITORS:

Thomson Redhead for the applicants
John M. O’Connor & Co. for the respondent

1. Each applicant, Sidbent Pty Ltd and Unilux Pty Ltd, by originating application seeks a declaration that contracts dated 10 and 11 December 2002 respectively with the respondent have been validly terminated pursuant to s 163 of the Body Corporate and Community Management Act 1997 (the “BCCM Act”) and s 367 of the Property Agents and Motor Dealers Act 2000 (the “PAMD Act”), as those Acts then were.  The applicants seek the return of their respective deposits.

1. There are numerous disputed issues of fact between the parties but the applicants contend that there are sufficient facts not in contest to permit the declarations and orders to be made summarily.

1. Section 163 of the BCCM Act concerns the obligations of the seller of a lot included in a community titles scheme, which is the case here for each lot, to give an intending buyer before that person enters into a contract to purchase the lot a statement providing specified information about the lot.  Failure to do so entitles the buyer to cancel the contract. 

1. Section 366 of the PAMD Act requires a relevant contract (which these two contracts are) to “have attached as its first or top sheet, a statement in the approved form” (Form 30(b)) described as a “warning statement” containing certain specified information. Such a warning statement is of no effect unless before the contract is signed by the buyer, the warning statement is signed and dated by the buyer. If either the warning statement is not attached to the contract as its top sheet or has not been signed before the contract is signed by the buyer, the buyer may terminate the contract prior to settlement and recover the deposit, s 367.

1. The issues include determining when the contracts were signed by the…