Wilson v Mirvac Queensland Pty Ltd - [2010] QSC 87

SUPREME COURT OF QUEENSLAND

CITATION:

Wilson v Mirvac Queensland Pty Ltd [2010] QSC 87

PARTIES:

WILSON, Catherine Frances
(applicant)
v
MIRVAC QUEENSLAND PTY LIMITED ACN 060 411 207

(respondent)

FILE NO/S:

BS13896/09

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

26 March 2010

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

19 January 2010

JUDGE:

Margaret Wilson J

ORDER:

1. it is declared that the applicant has validly cancelled, pursuant to s 214(4) of the Body Corporate and Community Management Act 1997 (“the BCCMA”), the written contract entitled “Sale Contract Tennyson Reach” dated 4 December 2007 between the applicant and the respondent;

2. the respondent pay the applicant’s costs of and incidental to the originating application, limited to the claim for relief under the BCCMA, to be assessed.

CATCHWORDS:

CONVEYENCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNINGS AND LIKE MATTERS – where applicant agreed to purchase a residential apartment in a proposed community titles scheme from respondent – where respondent provided a disclosure statement under s 213 of the Body Corporate and Community Management Act 1997 (Qld), and subsequently a further statement under s 214 – where applicant asserted she would be materially prejudiced if compelled to complete the contract and purported to cancel it under s 214(4) of the Act – where applicant seeks declaration that she validly cancelled the contract – whether applicant validly cancelled the contract

Acts Interpretation Act 1954 (Qld), s 14A(1)
Body Corporate and Community Management Act 1997 (Qld), s 2, s 4, s 30, s 31, s 94(1), s 152(1)(a), s 213, s 214, s 215, s 216, s 217(b)(iv), s 218, s 219
Building Units and Group Titles Act 1980 (Qld), s 49
Environmental Protection Act 1994 (Qld), s 421(3)
Land Sales Act 1984 (Qld), s 22

Retirement Villages Act 1999 (Qld)

Bassingthwaighte v Butt [1982] Qd R 670, considered
Celik Developments Pty Ltd v Mayes [2005] QSC 224, considered
Chancellor Park Retirement Village Pty Ltd v Retirement Village Tribunal [2004] 1 Qd R 346, considered
Deming No. 456 Pty Ltd & Ors v Brisbane Unit Development Corporation Pty Ltd (1984) 155 CLR 129, considered
Corporation Pty Ltd (1984) 155 CLR 129, considered
Flight v Booth (1834) 1 Bing. (N.C.) 370; 131 E.R. 1160, cited
Gold Coast Carlton Pty Ltd v Wilson [1985] 1 Qd R 182, considered
Lee v Surfers Paradise Beach Resort Pty Ltd [2008] 2 Qd R 249, considered
Simons v Herald & Weekly Times Ltd [1970] VR 131, cited
Sommer v Abatti Holdings Pty Ltd [1992] 1 Qd R 300, considered

COUNSEL:

S R Lumb for the applicant.

M D Martin for the respondent.

SOLICITORS:

Van de Graaff Lawyers for the applicant.

ClarkeKann Lawyers for the respondent.

ARGARET WILSON JM: The applicant agreed to purchase a residential apartment in a proposed community titles scheme from the respondent.

The respondent provided a disclosure statement under s 213…

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: [2010] QSC 87
Decision Date: 26 March 2010

CaseChat Overview and Summary

The case of Wilson v Mirvac Queensland Pty Ltd was heard in a Queensland court. The applicant, Wilson, sought to purchase a residential apartment from the respondent, Mirvac Queensland Pty Ltd, under a contract. The property was part of a proposed community titles scheme, and the respondent had provided a disclosure statement under s 213 of the Body Corporate and Community Management Act 1997 (Qld). Subsequently, a further statement was provided under s 214 of the Act. Wilson claimed that she would be materially prejudiced if required to complete the contract and attempted to cancel it under s 214(4) of the Act. She sought a declaration that she had validly cancelled the contract.

The court was tasked with determining whether the applicant had validly cancelled the contract under the statutory provisions. This involved interpreting the statutory obligations and restrictions relating to the contract for sale, and the protection afforded to purchasers. The court had to consider the disclosure requirements and the circumstances under which a purchaser may be materially prejudiced.

The court found that the applicant had indeed validly cancelled the contract under s 214(4) of the BCCMA. The court held that the applicant's assertion of material prejudice was sufficient to justify the cancellation of the contract. The respondent's obligations under the Act had been breached, leading to the applicant's decision to cancel the contract. Consequently, the court granted the relief sought by the applicant.

The orders of the court declared that the applicant had validly cancelled the contract, and ordered the respondent to pay the applicant's costs of and incidental to the originating application, limited to the claim for relief under the BCCMA, to be assessed.

Orders

Orders of the court

1. it is declared that the applicant has validly cancelled, pursuant to s 214(4) of the Body Corporate and Community Management Act 1997 (“the BCCMA”), the written contract entitled “Sale Contract Tennyson Reach” dated 4 December 2007 between the applicant and the respondent;

2. the respondent pay the applicant’s costs of and incidental to the originating application, limited to the claim for relief under the BCCMA, to be assessed.

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:	Wilson v Mirvac Queensland Pty Ltd [2010] QSC 87
PARTIES:	WILSON, Catherine Frances (applicant) v MIRVAC QUEENSLAND PTY LIMITED ACN 060 411 207 (respondent)
FILE NO/S:	BS13896/09
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	26 March 2010
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	19 January 2010
JUDGE:	Margaret Wilson J
ORDER:	1. it is declared that the applicant has validly cancelled, pursuant to s 214(4) of the Body Corporate and Community Management Act 1997 (“the BCCMA”), the written contract entitled “Sale Contract Tennyson Reach” dated 4 December 2007 between the applicant and the respondent; 2. the respondent pay the applicant’s costs of and incidental to the originating application, limited to the claim for relief under the BCCMA, to be assessed.
CATCHWORDS:	CONVEYENCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNINGS AND LIKE MATTERS – where applicant agreed to purchase a residential apartment in a proposed community titles scheme from respondent – where respondent provided a disclosure statement under s 213 of the Body Corporate and Community Management Act 1997 (Qld), and subsequently a further statement under s 214 – where applicant asserted she would be materially prejudiced if compelled to complete the contract and purported to cancel it under s 214(4) of the Act – where applicant seeks declaration that she validly cancelled the contract – whether applicant validly cancelled the contract Acts Interpretation Act 1954 (Qld), s 14A(1) Body Corporate and Community Management Act 1997 (Qld), s 2, s 4, s 30, s 31, s 94(1), s 152(1)(a), s 213, s 214, s 215, s 216, s 217(b)(iv), s 218, s 219 Building Units and Group Titles Act 1980 (Qld), s 49 Environmental Protection Act 1994 (Qld), s 421(3) Land Sales Act 1984 (Qld), s 22 Retirement Villages Act 1999 (Qld) Bassingthwaighte v Butt [1982] Qd R 670, considered Celik Developments Pty Ltd v Mayes [2005] QSC 224, considered Chancellor Park Retirement Village Pty Ltd v Retirement Village Tribunal [2004] 1 Qd R 346, considered Deming No. 456 Pty Ltd & Ors v Brisbane Unit Development Corporation Pty Ltd (1984) 155 CLR 129, considered Corporation Pty Ltd (1984) 155 CLR 129, considered Flight v Booth (1834) 1 Bing. (N.C.) 370; 131 E.R. 1160, cited Gold Coast Carlton Pty Ltd v Wilson [1985] 1 Qd R 182, considered Lee v Surfers Paradise Beach Resort Pty Ltd [2008] 2 Qd R 249, considered Simons v Herald & Weekly Times Ltd [1970] VR 131, cited Sommer v Abatti Holdings Pty Ltd [1992] 1 Qd R 300, considered
COUNSEL:	S R Lumb for the applicant. M D Martin for the respondent.
SOLICITORS:	Van de Graaff Lawyers for the applicant. ClarkeKann Lawyers for the respondent.