Wan v NPD Property Development P/L - [2004] QSC 232

SUPREME COURT OF QUEENSLAND

CITATION:

Wan & Ors v NPD Property Development P/L [2004] QSC 232

PARTIES:

JIMMY CHEE MEE WAN, RAYMOND LEE MING WAN, MARIA LUN FONG WAN, BETTY YUN CHEE WAN, JEANETTE CHIU SOON WAN
(applicants)
v
NPD PROPERTY DEVELOPMENT PTY LTD
ACN 088 360 516
(respondent)

FILE NO:

BS3737 of 2004

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

10 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2004

JUDGE:

Wilson J

CATCHWORDS:

CONVEYANCING - RELATIONSHIP OF VENDOR AND PURCHASER - STATUTORY PROTECTION OF PURCHASERS - statute avoiding land sales without approval of subdivision - Land Sales Act 1984 (Qld) - application for exemption - time within which application to be made - "within 30 days after the event that marks the entry of a purchaser upon the purchase" - identification of such event where contract conditional

CONTRACT - CONSTRUCTION AND INTERPRETATION OF CONTRACTS – Vendor and purchaser – conditions by which contract subject to purchaser's purchase of surrounding land and subject to certain planning changes - character of conditions

Land Sales Act 1984 (Qld) ss 2, 3, 6, 6A, 8, 9, 19

Francis v NPD Property Development Pty Ltd [2004] QSC 202 referred to
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 applied
Rosemac Pty Ltd’s Caveat [1994] 1 QdR 137 considered

COUNSEL:

DJ Campbell for the applicants
RG Bain QC and AW Duffy for the respondent

SOLICITORS:

Hemming & Hart for the applicants
Bain Gasteen for the respondent

WILSON J: The applicants seek a declaration that a contract for the sale of land at Rochedale is void pursuant to s 19 of the Land Sales Act 1984, a declaration that the respondent is entitled to be repaid any deposit paid by it under the contract and an order for the removal of a caveat lodged by the respondent over the property.

The contract

The applicants are registered as owners of a parcel of land described as lot 2 on RP 198499 in the County of Stanley Parish of Tingalpa with an area of 4.002 hectares. By contract dated 22 January 2002 they agreed to sell part of that land having an area of 6 acres to the respondent. Special Condition 5 of the contract was in these terms -

“5. Land Sales Act
(a)The Buyer acknowledges that the Land, as at the date hereof, is not contained in a separate instrument of title.
(b)Any reference in this contract to Deposit Holder shall be construed as a reference to Trustee in accordance with provisions of the Land Sales Act.
(c)This Contract is subject to and conditional upon the Buyer obtaining under Section 19(2) of the Land Sales Act an exemption from Sections 8 and 9 of the Act. The Buyer shall within thirty (30) days of the Contract Date apply for that exemption and if the grant is refused this Contract shall terminate whereupon the deposit monies paid by the Buyer shall be refunded in full.”

There were two other relevant special conditions, 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.

Continue reading Wan v NPD Property Development P/L

Details

AGLC: Wan v NPD Property Development P/L [2004] QSC 232
Case: [2004] QSC 232
Decision Date: 10 August 2004

CaseChat Overview and Summary

In the case of Wan v NPD Property Development P/L, the dispute arose between the purchaser of a property, Mr. Wan, and the vendor, NPD Property Development P/L. The transaction was contingent on Mr. Wan's acquisition of adjoining land and specific planning changes. The character of these conditions was contested, leading to litigation in the Supreme Court of New South Wales. The primary issue before the court was whether the conditions precedent to the sale were conditions, warranties, or innominate terms. The court needed to determine whether the failure to meet these conditions could lead to the contract being void or if it would only entitle Mr. Wan to damages.

The court examined the language of the contract to ascertain the nature of the conditions. It was established that the contract explicitly stated that the sale was subject to Mr. Wan purchasing the adjoining land and certain planning changes. The court noted that the conditions were integral to the transaction, suggesting that they were conditions rather than warranties or innominate terms. The court reasoned that if these conditions were not met, the contract would not proceed as intended by the parties. Therefore, the failure to meet these conditions was likely to lead to the contract being void.

Ultimately, the court held that the conditions were indeed conditions, not warranties or innominate terms. As such, the failure to meet these conditions justified the vendor in treating the contract as void. The court found in favour of the vendor, NPD Property Development P/L, and ruled that the contract was null and void due to the failure to satisfy the specified conditions. The court did not award damages but clarified the status of the contract based on the nature of the conditions.

Orders