Vale 1 Pty Ltd v Delorain Pty Ltd - [2009] QSC 425

SUPREME COURT OF QUEENSLAND

CITATION:

Vale 1 P/L v Delorain P/L [2009] QSC 425

PARTIES:

VALE 1 PTY LTD AS TRUSTEE FOR THE VALE 1 TRUST

(applicant)

v

DELORAIN PTY LTD ACN 125 370 461 AS TRUSTEE FOR THE DELORAIN TRUST

(respondent)

FILE NO/S:

BS3884/09

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

23 December 2009

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

20 October 2009

JUDGE:

Douglas J

ORDER:

Application dismissed with costs.

CATCHWORDS:

CONTRACT – PUT AND CALL OPTIONS DEEDS IN RESPECT OF RESIDENTIAL PROPERTY - whether three put and call option deeds between the applicant as grantee and the respondent developer and grantor of the deeds, constitute “relevant contracts” for the purposes of the Property Agents and Motor Dealers Act 2000 – whether the consumer protection provisions of the Act should apply.

Property Agents and Motor Dealers Act 2000 s 364, ch 11

Cheree–Ann Property Developers Pty Ltd v East West International Developments Pty Ltd [2007] 1 Qd R 132, 145 at [51]

David Deane and Associates Pty Ltd v Bonnyview Pty Ltd [2005] QCA 270 at [22], [23], [31]

Headley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2009] QCA 231 at [5]

Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57, 71 – 76

Mark Bain Constructions Pty Ltd v Barling [2006] QSC 48, [2007] 1 Qd R 132, 145 at [48] – [51].

COUNSEL:

RW Morgan for the applicant

GJ Handran for the respondent

SOLICITORS:

Macrossan & Amiet for the applicant

Hickeys for the respondent

Douglas J: The issue in this case is whether three put and call option deeds between the applicant Vale 1 Pty Ltd as grantee and the respondent developer and grantor of the deeds, Delorain Pty Ltd, constitute “relevant contracts” for the purposes of s 364 and ch 11 of the Property Agents and Motor Dealers Act 2000. If they do create such contracts the consumer protection provisions of the Act would apply as the apartments the subject of each deed were agreed by the parties to be residential property for the purposes of the Act.

Section 364 defines a “relevant contract” as a “contract for the sale of residential property in Queensland …”. If the consumer protection provisions apply and are not complied with then the Act permits a buyer to terminate the contract, which Vale has purported to do in these cases.

The deeds

By cl. 5 of each deed, the grantor granted an option to the grantee to purchase the property but also acknowledged in cl. 6.1 that a buyer may be referred by the grantee to the grantor to buy the lot. The sale was to be on terms annexed to the deed which identified the seller but not the buyer and recognised the grantee’s rights to promote the lot for sale at a minimum price. Clause 8 also granted a put option to the grantor to sell the property to the grantee on the…

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.

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Details

Case: [2009] QSC 425
Decision Date: 23 December 2009

CaseChat Overview and Summary

In the matter of Vale 1 Pty Ltd v Delorain Pty Ltd, the dispute arose between the applicant, Vale 1 Pty Ltd, and the respondent, Delorain Pty Ltd, over the interpretation of three put and call option deeds related to residential property. The applicant sought a declaration that the deeds did not constitute "relevant contracts" for the purposes of the Property Agents and Motor Dealers Act 2000, thereby exempting them from the consumer protection provisions of the Act. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was to determine whether the put and call option deeds executed between the applicant and the respondent constituted "relevant contracts" under the Act. The court had to consider the nature of the agreements, the relationship between the parties, and the statutory language to ascertain whether the provisions of the Act applied. The court also had to assess whether the deeds fit within the definition of a "relevant contract" as outlined in the Act.

In delivering the judgment, the court held that the put and call option deeds in question did not constitute "relevant contracts" for the purposes of the Property Agents and Motor Dealers Act 2000. The court found that the agreements were not within the scope of the Act's consumer protection provisions as they did not involve a consumer transaction in the context of the sale of property. The court further reasoned that the agreements were not regulated by the Act as they were not contracts for the sale of property to consumers. Consequently, the court dismissed the application and ordered the applicant to pay the respondent's costs.

Orders

Orders of the court

Application dismissed with 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.

CITATION:	Vale 1 P/L v Delorain P/L [2009] QSC 425
PARTIES:	VALE 1 PTY LTD AS TRUSTEE FOR THE VALE 1 TRUST (applicant) v DELORAIN PTY LTD ACN 125 370 461 AS TRUSTEE FOR THE DELORAIN TRUST (respondent)
FILE NO/S:	BS3884/09
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	23 December 2009
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	20 October 2009
JUDGE:	Douglas J
ORDER:	Application dismissed with costs.
CATCHWORDS:	CONTRACT – PUT AND CALL OPTIONS DEEDS IN RESPECT OF RESIDENTIAL PROPERTY - whether three put and call option deeds between the applicant as grantee and the respondent developer and grantor of the deeds, constitute “relevant contracts” for the purposes of the Property Agents and Motor Dealers Act 2000 – whether the consumer protection provisions of the Act should apply. Property Agents and Motor Dealers Act 2000 s 364, ch 11 Cheree–Ann Property Developers Pty Ltd v East West International Developments Pty Ltd [2007] 1 Qd R 132, 145 at [51] David Deane and Associates Pty Ltd v Bonnyview Pty Ltd [2005] QCA 270 at [22], [23], [31] Headley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2009] QCA 231 at [5] Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57, 71 – 76 Mark Bain Constructions Pty Ltd v Barling [2006] QSC 48, [2007] 1 Qd R 132, 145 at [48] – [51].
COUNSEL:	RW Morgan for the applicant GJ Handran for the respondent
SOLICITORS:	Macrossan & Amiet for the applicant Hickeys for the respondent