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.

Statutory right of user imposed for landlocked land

The decision of McMurdo J in Pacific Coast Investments Pty Ltd v Cowlishaw [2005] QSC 259 concerned an application under s 180 of the Property Law Act 1974 (Qld) for a statutory right of user.

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.

The requirement to 'Start a Proceeding' to prevent the lapse of a caveat

Section 126 of the Land Title Act 1994 (Qld) regulates whether, and if so, when a caveat will lapse. While certain caveats will not lapse due to the operation of s 126(1), if a caveator does not wish a caveat to which the section applies to lapse, the caveator must start a proceeding in a court of competent jurisdiction to establish the interest claimed under the caveat within the time limits specified in, and otherwise comply with the obligations imposed by, s 126(4). The requirement, in s 126(4), to “start a proceeding” was the subject of judicial examination by the Court of Appeal (McMurdo P, Holmes JA and MacKenzie J) in Cousins Securities Pty Ltd v CEC Group Ltd [2007] QCA 192.

Statutory fraud or not?

The possibility of fraud lurks easily in the context of a mortgage transaction (as recently exemplified by the decision of the Queensland Court of Appeal in Young v Hoger [2001] QCA 461). A relatively novel issue, involving an allegation of fraudulent behaviour, arose for consideration by Justice Wilson in Unic v Quartermain Holdings Pty Ltd [2001] QSC 403

Waiver in the Court of Appeal

The vagaries inherent in the operation of special conditions in land sale contracts have commonly required judicial interpretation. A further illustration is provided by the recent decision of the Queensland Court of Appeal (Jerrard, Keane JJA and Philip McMurdo J) in Donaldson and Donaldson v Bexton and Bexton [2006] QCA 559.

Encroachment: what cost a pool with ocean views?

In Shadbolt v Wise [2002] QSC 348 the applicants were seeking relief under s184 of the Property Law Act 1974 (Qld) in respect of an encroachment that they constructed on land belonging to the adjacent owner. The encroachment in question consisted of slightly less than one half of an elaborate pool and pool enclosure (the area of the encroachment being approximately 108 square metres). The land upon which the encroachment was situated was elevated with distant ocean views.

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.

Land Sales Act 1984: The time limit for an application for exemption

The decision of Wilson J in Wan and Ors v NPD Property Development Pty Ltd [2004] QSC 232 also concerned the operation of the Land Sales Act 1984 (Qld) (‘the Act’). As previously noted, s 8(1) of the Act provides that a proposed allotment of freehold land might be sold only in certain circumstances. An agreement made in contravention of s 8(1) is void. Section 19 allows a purchaser (and others) to apply for an exemption from any of the provisions of Pt 2. By s 19(6), notwithstanding s 8, a person may agree to sell a proposed allotment if the instrument that binds a person to purchase the proposed allotment is conditional upon the grant of an exemption. By s 19(7) an application for exemption must be made ‘within 30 days after the event that marks the entry of a purchaser upon the purchase of the proposed allotment.’

'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)