Black v Garnock : implications for Queensland conveyancing practice

What was previously established as a fundamental principle, that a judgment creditor may take no interest beyond what the judgment debtor could give, has now been called into question by the decision of the High Court in Black v Garnock [2007] HCA 31. This article examines the implications of the decision of the High Court for conveyancing practice in Queensland. The relevant facts of Black v Garnock [2007] HCA 31 may be briefly stated: The Garnocks and the Luffs, as purchasers, entered a contract to purchase a rural property from Mrs Smith with settlement due on 24 August 2005. On 23 August 2005, a creditor obtained a writ against Mrs Smith from the District Court of New South Wales. No caveat was lodged on behalf of the purchasers prior to settlement (there being no equivalent, in New South Wales, of the Queensland settlement notice mechanism).

Swell : a feature-length screenplay set in the world of Australian surfing, and an accompanying exegesis on three-act structure

Despite many arguments to the contrary, the three-act story structure, as propounded and refined by Hollywood continues to dominate the blockbuster and independent film markets. Recent successes in post-modern cinema could indicate new directions and opportunities for low-budget national cinemas.

The meaning of 'material prejudice'

As dictated by s 213 of the Body Corporate and Community Management Act 1997 (Qld), the seller of a proposed lot is required to provide the buyer with a disclosure statement before the contract is entered into. Where the seller subsequently becomes aware that information contained in the disclosure statement was inaccurate when the contract was entered into or the disclosure statement would not be accurate if now given as a disclosure statement, the seller must, within 14 days, give the buyer a further statement rectifying the inaccuracies in the disclosure statement. Provided the contract has not been settled, where a further statement varies the disclosure statement to such a degree that the buyer would be materially prejudiced if compelled to complete the contract, the buyer may cancel the contract by written notice given to the seller within 14 days, or a longer period as agreed between the parties, after the seller gives the buyer the further statement. The term ‘material prejudice’ was considered by Wilson J in Wilson v Mirvac Queensland Pty Ltd.

Causing economic harm to property developers : damages for starting an incurably bad appeal?

A recent decision of the Queensland Court of Appeal involved an unusual statement of claim made on behalf of the developer of a proposed resort in Port Douglas. The decision is The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475. The issue The defendant had objected to a development application of the plaintiff developer and lodged an appeal in the Planning and Environment Court against the council decision granting a development permit. The main issue in the Planning and Environment Court was whether the site coverage of the proposed resort was excessive. In a separate action (the subject matter of the present appeal), the plaintiff developer claimed damages for ‘negligence’ alleging that the defendant had breached a duty of care not to appeal without properly or reasonably assessing whether the development qualified for a permit given that the resort qualified for the maximum allowable site coverage. It was alleged that the appeal lodged by the defendant in the Planning and Environment Court had no reasonable prospects of success and that any reasonable person properly advised would know, or ought reasonably to have known, that to be so. The defendant had been “put on notice” that the plaintiff would incur loss of $10,000 for every day there was a delay in starting construction of the resort. The claim made by the developer required the court to consider those circumstances where a person may lawfully and deliberately cause economic harm to another. Was a duty of care owed by the defendant for negligent conduct of litigation that caused economic loss to the plaintiff?

Compensation for compulsory acquisition of a licensed car parking space

The Acquisition of Land Act 1967 (Qld) (‘the Act’) deals with the acquisition of land by the State for public purposes and provides for compensation. The issue that arose for determination in Sorrento Medical Service Pty Ltd v Chief Executive, Dept of Main Roads [2007] QCA 73 was whether the appellant was entitled to claim compensation under the Act in respect of land resumed by the Main Roads Department over which the appellant had an exclusive contractual licence for car parking spaces for use in association with a medical centre leased by the appellant. At first instance, it was held by the Land Court that the appellant was not entitled to compensation for the resumption of the car parking spaces. The basis for this decision by the Land Court was that a right to compensation only exists where resumption has taken some proprietary interest of the claimant in the land. Following an appeal to the Land Appeal Court being dismissed, the appellant instituted the present appeal to the Queensland Court of Appeal (McMurdo P, Holmes JA and Chesterman J).

Legislative change will impact on conveyancing

One of the more significant conveyancing decisions of 2005 was MNM Developments Pty Ltd v Gerrard [2005] QCA 230 (‘Gerrard’). Real estate agents, in particular, became concerned when the Court of Appeal raised grave doubts concerning the validity of a contract for the sale of residential property formed by the use of fax. As a result, the government acted quickly to introduce amendments to the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMDA’) and the Body Corporate and Community Management Act 1997 (Qld) (‘BCCMA’). The relevant Act is the Liquor and Other Acts Amendment Act 2005 (Qld). These amendments commenced on 1 December 2005. In the second reading speech, the Minister stated that these amendments would provide certainty for sellers of residential properties or their agents when transmitting pre-contractual documents by facsimile and other electronic means. The accuracy of this prediction must be assessed in light of the errors that may occur.

Marketeers beware

The practices of marketeers in the Queensland property market have been the subject of intense media interest and have caused widespread consumer concern. In response to these concerns the Queensland government has amended the Property Agents and Motor Dealers Act 2000 (Qld) (“the Act”). Significant changes to the Act were introduced by the Property Agents and Motor Dealers Amendment Act 2001 (Qld) (“the amending Act”). Implicit in the introduction of the amending Act was recognition that marketeers had altered their operating tactics to avoid the requirements of the Act. The amendments enhance regulation and are intended to capture the conduct of all persons involved in unconscionable practices that have lead to dysfunction in certain sectors of the Queensland property market. The amending Act is focussed on a broad regulatory response rather than further regulation of specific occupations in the property sale process as it was recognised that the approach of industry regulation had proven to be inadequate to curtail marketeering practices and to protect the interests of consumers. As well as providing for increased disclosure obligations on real estate agents, property developers and lawyers together with an extension of the 5 business day cooling-off period to all contracts (other than auction contracts) for the sale of residential property in Queensland; in an endeavour to further protect consumer interests the amending Act provides for increased jurisdiction and powers to the Property Agents and Motor Dealers Tribunal (“the Tribunal”) enabling the Tribunal to deal with claims against marketeers. These provisions commenced on the date of assent (21 September 2001). The aim of this article is to examine the circumstances in which marketeers will contravene the legislation and the ramifications.

Mortgagee sale obligations tightened

The enactment of the Property Law (Mortgagor Protection) Amendment Act 2008 (Qld), means that the obligations of a mortgagee exercising power of sale or a receiver selling have been substantially tightened in Queensland. Background As explained in the explanatory notes accompanying the legislation, with current global economic and financial circumstances, there were concerns about the position of mortgagors when mortgagees exercised their powers of sale. The objective of the amending legislation was to protect the interests of mortgagors by strengthening the statutory provisions relating to the duty of the mortgagee exercising power of sale to take reasonable care to ensure the property is sold at market value. The amending legislation was urgently passed without any consultation process.

Queensland Court of Appeal opines on the meaning of 'material prejudice'

The decision of Wilson J in Wilson v Mirvac Queensland Pty Ltd was the subject of an article in an earlier edition of this journal. At that time, it was foreshadowed that the decision was to be taken on appeal. The decision of the Court of Appeal in Mirvac Queensland Pty Ltd v Wilson is considered in this article.

The impact of location on contribution schedule lot entitlements

Should the owner of a penthouse unit pay more in body corporate levies than the ground floor unit owner? A decision of the Queensland Court of Appeal (McPherson JA, Chesterman and Atkinson JJ) will be of great interest to those seeking to challenge contribution schedule lot entitlements imposed under the Body Corporate and Community Management Act 1997 (Qld) (‘the Act’). The decision is Fischer v Body Corporate for Centrepoint Community Title Scheme 7779 [2004] QCA 214.

Attach the correct warning statement

Practitioners will be aware that s 366 (1) of the Property Agents and Motor Dealers Act 2000 provides that a relevant contract must have attached, as its first or top sheet, a warning statement in the approved form. A failure to attach a warning statement in the prescribed manner triggers a right of termination in the buyer. The factual circumstances in Devine Ltd v Timbs [2004] QSC 24 are indicative of the problems that may arise in the construction of this statutory provision. The application concerned put and call option agreements entered into concerning 4 lots. The agreements, in identical terms, were signed before the applicant seller had completed a proposed residential apartment building. In each case the option agreement provided that the agreement was not binding on the seller until and unless the purchaser returned to the seller, amongst other things, two copies of the warning statement under the Property Agents and Motor Dealers Ac 2000 signed by the purchaser and two copies of the contract document signed by the purchaser. The seller was required to hold the contract documentation in escrow and was forbidden to sign it until and unless either option was exercised.

When is a warning statement “attached” to a contract?

Section 366 of the Property Agents and Motor Dealers Act 2000 (Qld) provides that all contracts for the sale of residential property in Queensland (other than contracts formed on a sale by auction) should have “attached” as the first or top sheet a warning statement in the approved form. The section does not explain or define the meaning of the word “attached”. Further, the section does not contemplate the situation where the contract is faxed to a potential buyer for execution.

'State' of play : Queensland report

A number of recent legislative amendments impact on property law practice in Queensland. Property Law (Mortgagor Protection) Amendment Act 2008 (Qld) Body Corporate and Community Management Amendment Act 2009 (Qld) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) Sustainable Planning Act 2009 (Qld) Vegetation Management and Other Legislation Amendment Bill 2009 (Qld) Property Agents and Motor Dealers Act 2000 (Qld)

Changes to conveyancing in Queensland

Significant amendments to the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMDA’) and the Body Corporate and Community Management Act 1997 (Qld) (‘BCCMA’) were made by the Liquor and Other Acts Amendment Act 2005 (Qld). These amendments commenced on 1 December 2005. The purpose of this article is to briefly describe the amendments and to indicate certain issues that may arise in practice.