Azzura Holdings Pty Ltd v Eyles-Bennett [2010] QDC 119

DISTRICT COURT OF QUEENSLAND CITATION: Azzura Holdings Pty Ltd v Eyles-Bennett [2010] QDC 119 PARTIES: AZZURA HOLDINGS PTY LTD AS TRUSTEE FOR GRANDSURF HOLDINGS TRUST (applicant) v EYLES-BENNETT (respondent) FILE NO: 668/09 PROCEEDING: Originating Application ORIGINATING COURT: District Court Southport DELIVERED ON: 31 March 2010 DELIVERED AT: Southport HEARING DATE: 1 February 2010 JUDGE: Newton DCJ ORDER: 1. Declare that the applicant validly terminated the contract for the sale of land between the applicant and the respondent dated 28 September 2007 and situate at “Elston Grandsurf Resort”, corner Hamilton Avenue and Surfers Paradise Boulevard, Surfers Paradise in the State of Queensland (more properly described as Lot 51 on SP191989, county of ward, parish of Gilston, title reference 50776551). 2. Further order that the deposit in the sum of $66,000 be forfeited to the applicant. 3. Further order that the respondent is to pay the applicant’s costs of an incidental to the application to be assessed. Costs of and incidental to the application to be assessed on the ordinary basis of assessment. CASES: Burnitt & Anor v Pacific Paradise Pty Ltd [2004] QDC 218 MFT Holdings Pty Ltd v Booth [2003] QDC 344 Blackman v Milne [2006] QSC 350 CATCHWORDS: COUNSEL: Mr T Matthews for the applicant Mr L Nevison for the respondent SOLICITORS: Ramsden Bow Lawyers for the applicant Munro Thompson for the respondent -- 1 of 14 -- 2 [1] The applicant (“Azzura”) claims the sum of $66,000.00 from the respondent, Ms Eyles-Bennett which sum was paid by the respondent as a deposit on the purchase of a unit “off the plan” at the Elston Grand Surf Resort. 1 Azzura and Ms Eyles-Bennett entered into the contract on 28 September 2007. Ancillary to this relief, a declaration is sought that Azzura as seller has lawfully terminated the contract for Ms Eyles-Bennett’s default. [2] In an affidavit 2 Ms Eyles-Bennett confirms that she decided to buy a unit in the development shortly after attending an “investment tour”. She then advised Azzura’s agent by telephone of her decision to purchase one of the units after asking a number of questions of the agent in respect of the proposed development. The respondent subsequently received the contract and disclosure statement via courier at her place of work in Noosaville which she reviewed over a period of several days.3 She did not meet with Azzura’s agent in person to sign the proposed contract documentation. 4 After further discussing the proposed development and contract documents with Azzura’s agent, Ms Eyles-Bennett signed one copy of the contract documentation, her signature being witnessed by Ms Andrea Brawner, a receptionist at the respondent’s place of work.5 The signed contract documentation was forwarded by Ms Eyles-Bennett to her then solicitors, Plass Lawyers, who were authorised to forward the documents to Azzura for signing. A letter dated 31 July 2009 from Azzura’s solicitors 6 notified Ms Eyles-Bennett that settlement was to occur on 17 August 2009 with time being of the essence. The letter also indicated that purchasers wishing to undertake pre-settlement inspection would be able to do so from 1 August 2009 by appointment. [3] Shortly after receiving the letter of 31 July 2009 Ms Eyles-Bennett in fact performed an inspection of the completed development and obtained “copies of a number of the final documents contained in the Disclosure Statement to satisfy myself that the Development and unit had been completed as I understood they would be”. 7 The respondent’s inquiries are claimed by her to have revealed that: (1) The design of the unit was significantly altered including:- (a) The double wardrobes in each bedroom being approximately 50% smaller; (b) the removal of the pantry in the kitchen; and (c) the relocation of internal walls; (2) significantly inferior finishes had been used including:- (a) the kitchen finishes consisted of a small amount of timber veneer and standard flat finish low pressure laminate as 1 Lot 51 on SP191989, Corner of Hamilton Avenue and Surfers Paradise Boulevard, Surfers Paradise. 2 Affidavit of Jane Eyes-Bennett dated 27 January 2010 and filed by leave at the hearing of the application on 1 February 2010. 3 Ibid, paragraphs 11 and 13. 4 Ibid, paragraph 12. 5 Ibid, paragraphs 11 and 16. 6 Ramsden Bow Lawyers. 7 Affidavit of Jane Eyes-Bennett dated 27 January 2010, paragraph 19. -- 2 of 14 -- 3 opposed to timber veneer, two pack and metallic laminate finishes; (b) oyster lights and energy efficient (low wattage) downlights were installed in all areas except entry / living and dining areas where recessed halogen downlighting to plasterboard ceiling was to be installed in the entry / living and dining / bedrooms / bathroom / ensuite / laundry; (c) underbench facia had been finished with standard flat finish low pressure laminate as opposed to metallic laminate or equivalent; (d) white melamine drawers and shelves had not been installed in the built in wardrobes; and (e) no telephone outlets had been installed in the kitchen. (3) The common property for the development:- (a) did not incorporate a sauna or steam room as originally advised, and had been replaced by an exercise room; (b) had a complete tile floor finish for the barbeque, pool and spa areas which is of a significantly inferior quality compared to the timber decking with contrasting tile floor finish; and (c) the spa had been relocated without overhead shelter; (4) The remuneration payable to the Caretaker under the Caretaking Agreement had been increased from $211,200.00 to $242,500.00 per annum, that is, an increase of approximately $162.00 or 15% per lot per annum which I was unaware of given that the Further Statements provided by the Applicant expressly stated that “the Administrative Fund Budget and Sinking Fund Budget remain unchanged” and the amended Caretaking Agreement was not redisclosed; (5) The Body Corporate Manager’s Agreement had been changed in numerous respects including:- (a) a significant expansion of the services to be carried out by the Manager; (b) a significant increase in the amounts of the Additional Management Fees payable to the Manager; (6) registered Survey Plan 191989 shows that the area of the unit was 2 sqm smaller; (7) the First Community Management Statement which has been registered contains: (a) a new By-law 38 requiring the Body Corporate to ensure compliance with the approved Stormwater Quality Improvement Devices Maintance Management Plan; and (b) additional exclusive use areas have been granted in respect of Lot 193. (8) the Building management Statement which has been registered contains:- (a) new clauses 1.6 to 1.8 regarding, among other things, the Body Corporate being obligated to ensure compliance with numerous management plans and conditions referred to in the development permit obtained by the Applicant; -- 3 of 14 -- 4 (b) new clauses 10.8 which provides, among other things, that the repair and maintenance of stormwater drainage lines are the responsibility of the Bodies Corporate; and (c) new clauses 10.9 which provides, among other things, that the repair and maintenance of fire services are the responsibility of the Bodies Corporate. [4] Ms Eyles-Bennett states in her affidavit that she believes that the unit and development as completed are significantly inferior to that represented in the proposed contract documentation and by Azzura’s agent. The respondent claims that the reduction in area of the unit and the reduction or removal of storage areas significantly reduce the value of the unit and her ability to obtain rentals. Furthermore, she claims that the changes to the finishes all involve the use of inferior items of a standard dissimilar to those disclosed which is not in keeping with finishes for a five-star resort and which significantly reduce the value of the unit. Ms Eyles-Bennett also claims that the changes to the Body Corporate Managers Agreement and Caretaker Agreement would significantly increase the financial obligations imposed upon her as an owner of a unit within the development. Changes to the Community Management Statement and Building Management Statement are said by Ms Eyles-Bennett to result in further financial obligations upon the Body Corporate which would in turn increase the levies payable by her. The respondent seeks orders in this proceeding that she has validly terminated the contract entered into as a consequence of the applicant’s failure to comply with the provisions of the Property Agents and Motor Dealers Act 2000 (“PAMDA”) and/or the Body Corporate and Community Management Act 1997 (“BCCMA”). [5] The first matter which is raised on behalf of the respondent to prevent the granting of any relief to the applicant is that this Court does not have jurisdiction because the monetary amount of the applicant’s claim exceeds the statutory limit of the Court. The respondent points to the property in respect of which the declaration is sought by Azzura as having a value of $660,000. Furthermore, it is said that the only evidence before the Court as to unimproved value is in the affidavit of Elizabeth Maluish which discloses that the unimproved value of the Scheme Land is $9,300,000.8 [6] Relevantly, section 68 of the District Court of Queensland Act 1967 (“DCQA”) provides as follows: [7] “68 Civil Jurisdiction (1) The District Court has jurisdiction to hear and determine– (a) … (b) actions and matters– (i) … (xiii) for the determination of any question of construction arising under a deed, will or other written instrument, and for a declaration of the rights of the persons interested where the sum of the property in respect of which the 8 Affidavit of Elizabeth Maluish – Exhibit “CEM23” at p435. -- 4 of 14 -- 5 declaration is sought does not exceed in amount or value the monetary limit… (2) In this section– Monetary limit means $250000” [8] It is contended on behalf of the respondent that the declaration sought by Azzura is one going to the rights of the parties in respect to the entirety of the contract and not simply as to the amount of the deposit of $66,000. DCQA is silent as to the manner in which the monetary limit is to be determined for the purposes of subparagraph (1)(b)(xiii) of section 68. Subsection (3)(b) of section 68 provides: “In the case of proceedings falling within subsections (1)(b)(iii), (xi) or (xii) – the value of land shall be the most recent valuation current at the time of instituting the proceedings, made by the Chief Executive (of the Department within which the Valuation of Land Act 1944 is administered) under the Valuation of Land Act 1944 or, if there is no such valuation in respect of the land, the current market value at the time of the land exclusive of improvements thereto.” [9] Although the value of the property in respect of which the declarations are sought in this application does appear to exceed the monetary limit of this court in value, it should be noted that the declarations sought are ancillary to the principal relief, namely the claim for the forfeiture of the $66,000 deposit. Thus, “the sum … in respect of which the declaration is sought” is $66,000 which clearly falls within the Court’s jurisdictional limit. In my view, the submission that the court lacks jurisdiction to entertain the application must be rejected. 9 Accordingly, I decline to order that the proceeding be transferred to the Supreme Court and I further decline to order that this proceeding be struck out. 10 [10] The respondent complains that the affidavit of Catherine Elizabeth Maluish 11 contains hearsay evidence, including reliance on documents to which she was not a party.12 In particular, complaint is made with regard to paragraph 8 and Exhibit CEM1, and paragraph 9 and Exhibit CEM2. It is alleged that these are the very documents which underpin the primary declaratory relief sought and in respect of which there is a factual and legal controversy. [11] Paragraph 8 of the affidavit of Ms Maluish states: “Exhibited hereto and marked ‘CEM1’ is a copy of the PAMDA Form 30c, BCCM Form 14 and Contract of Sale dated 21 August 2007” Paragraph 9 of the affidavit of Ms Maluish states: 9 See MFT Holdings Pty Ltd v Booth [2003] QDC 344 per Hall DCJ. 10 See written outline of argument on behalf of the respondent, page 3, paragraphs 4 and 5. 11 A solicitor in the employ of Ramsden Bow Lawyers who has carriage and conduct of this matter on behalf of Azzura. 12 Written outline of argument on behalf of the respondent, page 3, paragraph 7. -- 5 of 14 -- 6 “Exhibited hereto and marked ‘CEM2’ is a copy of the Disclosure Statement for ‘Elston Grandsurf Resort’.” [12] Counsel for the respondent refers to rule 430 of the Uniform Civil Procedure Rules 1999 (“UCPR”) which provides as follows: “430 Contents of affidavit (1) Except if these rules provide otherwise, an affidavit must be confined to the evidence the person making it could give if giving evidence orally. (2) However, an affidavit for use in an application because of default or otherwise for relief, other than final relief, may contain statements based on information and belief if the person making it states the sources of the information and the grounds for the belief…” [13] Counsel for the respondent submitted that because this proceeding constitutes an application for final relief an affidavit relied upon must be confined to the evidence the person making it could give if giving evidence orally.13 It was further submitted that Ms Maluish was not a party to the contract and that although she may have been the solicitor for the applicant and the contract may well have come into her possession in that capacity, the documents exhibited to the affidavit of Ms Maluish in paragraphs 8 and 9 should have been exhibited to an affidavit under the hand of the applicant rather than the applicant’s solicitor. 14 [14] The difficulty confronting the respondent in this regard, however, is that Ms Eyles-Bennett has in her affidavit deposed that she received the contract documentation, that is the contract and Disclosure Statement exhibited to the affidavit of Ms Maluish 15 and that she reviewed that documentation soon after receiving it. Since it was to be the respondent’s first property purchase in this country and her first “off-the-plan” investment it took her several days to review the documents.16 After reviewing the proposed contract documentation the respondent called the applicant’s agent (or he called her) and, after further discussing the proposed development and contract documents Ms Eyles- Bennett signed one copy of the contract documentation. 17 Shortly after 4 September 2007 the respondent forwarded the proposed contract documentation signed by her to her lawyers at the time, Plass Lawyers, and authorised them to forward the documents to the vendor for signing.18 In these circumstances it would appear that the matters raised by counsel for the respondent in his objection to paragraphs 8 and 9 of the affidavit of Ms Maluish and to the documents exhibited in those paragraphs find no support in the affidavit of the respondent herself. 13 Transcript p1-15, lines 9-12. 14 Transcript p1-15, lines 20-30. 15 Affidavit of Jane Eyles-Bennett, sworn on 27 January 2010, paragraph 11. 16 Ibid, paragraph 13. 17 Ibid, paragraph 15. 18 Ibid, paragraph 18. -- 6 of 14 -- 7 [15] An affidavit affirmed by Mr Roberto Badalotti on 4 December 2009 purported to confirm that the cause of action and the facts supporting that cause of action in the originating application and the affidavit of Catherine Elizabeth Maluish are true and correct. 19 Mr Badalotti states that he is the director of the applicant company in this action and has authority to affirm his affidavit on its behalf. 20 I indicated at the conclusion of argument on this point that given the purported confirmation by Mr Badalotti of the matters contained in the affidavit of Ms Maluish with respect to the contract and the Disclosure Statement I was not minded to uphold the objection of the respondent to paragraphs 8 and 9 contained in the affidavit of Ms Maluish. [16] At the date of hearing of this originating application it was conceded that the contract had not been stamped as required by section 487 of the Duties Act 2000 which provides as follows: “487 Receipt of instruments in evidence (1) Unless an instrument is properly stamped, it— (a) is not available for use in law or equity or for any purpose; and (b) must not be received in evidence in a legal proceeding, other than a criminal proceeding. (2) However, a court may receive the instrument in evidence if— (a) after it is received in evidence, the instrument is given to the commissioner as required by arrangements approved by the court; or (b) if the person who produces the instrument is not the person liable to pay the duty, the name and address of the person so liable, and the instrument, is given to the commissioner as required by arrangements approved by the court…” [17] I accept that no final relief should be granted in this matter until the relevant obligation to the revenue has been met. A failure to stamp goes to the issue of enforceability of the document not to validity of the document. 21 Counsel for the applicant conceded before me that the contract had not been stamped but stated that he held specific instructions that the principal of his instructing solicitors “will undertake to the Court to stamp this document before your Honour gives a final judgment”. 22 That undertaking was accepted as being satisfactory by counsel for the respondent. 23 Ms Maluish confirmed by e-mail on 8 February 2010 that stamp duty on the contract had been paid on 1 February 2010. The substantive application 19 Affidavit of Roberto Badalotti, affirmed 4 December 2009, paragraph 3. 20 Ibid, paragraph 1. 21 Burnitt & Anor v Pacific Paradise Pty Ltd [2004] QDC 218 per McGill SC DCJ. 22 Transcript p1-22, lines 13-18. 23 Ibid, line 20. -- 7 of 14 -- 8 [18] Azzura seeks a declaration that it has validly terminated a contract of sale between it as seller and Ms Eyles-Bennett as purchaser dated 28 September 2007. The contract of sale is in relation to the proposed purchase of a unit in a complex known as Elston Grandsurf Resort situated at the corner of Hamilton Avenue and Surfers Paradise Boulevard at Surfers Paradise. Ancillary relief in relation to recovery of the deposit is also sought. The proposed purchase involved an intended acquisition of a unit off-the-plan. By facsimile transmission dated 17 August 2009 the respondent’s solicitors gave notice to the solicitors for Azzura as to Ms Eyles-Bennett’s intention to terminate the contract pursuant to the provisions of PAMDA, or in the alternative cancellation of the contract pursuant to the provisions of BCCMA.24 Azzura refused to accept the termination by the respondent, subsequently purported to tender for settlement and then purported to terminate the contract on the basis of the respondent’s alleged failure to attend settlement. 25 [19] It is necessary to set out a chronology of the material facts leading up to the purported termination of the contract by Azzura. On 21 August 2007 the contract of sale including PAMDA Form 30c, BCCM Form 14 and contract of sale was forwarded to Ms Eyles-Bennett who accepts having received all the documents. 26 The respondent spent several days carefully reviewing the documents and on 28 August 2007 paid $1,000 to the stakeholder as part- payment of the nominated deposit. The executed copy of the contract was returned under cover of a letter dated 11 September 2007 from Plass Lawyers who were then acting for Ms Eyles-Bennett. On 14 September 2007 Azzura’s solicitors wrote to the solicitors for the respondent enclosing PAMDA Form 30c, BCCM Form 14, contract of sale and Disclosure Statement and indicated that execution of the contract by Ms Eyles-Bennett had not been witnessed. By that correspondence 27 Ms Eyles-Bennett’s attention was drawn to the warning statements as required by the relevant legislation. The solicitors for the respondent returned the executed contract under cover of a letter dated 25 September 2007 28 requesting that Azzura execute and return the contract as soon as possible. That was done on 27 September 2007.29 [20] Under cover of a letter dated 2 October 2007,30 a PAMDA Form 30c, BCCM Form 14, Contract of Sale and Disclosure Statement were forwarded to the respondent’s solicitors and, the respondent’s attention was drawn by that correspondence to the warning statements. Ms Eyles-Bennett did not pay the balance of the deposit, but utilised a Deposit Bond in the amount of $66,000 on 3 October 2007 in return for which the initial $1,000 cash deposit was released back to Ms Eyles-Bennett on 5 October 2007.31 On 13 February 2008 the solicitors for Azzura forwarded to the solicitors for Ms Eyles-Bennett the First Further Statement pursuant to section 214 BCCM. This gave notice that 24 Affidavit of Catherine Elizabeth Maluish, Exhibit CEM26, pages 454-459. 25 Ibid, Exhibit CEM38, at pages 489-491. 26 Affidavit of Jane Eyles-Bennett, paragraph 11. 27 Affidavit of Maluish, exhibit CEM5. 28 Ibid, Exhibit CEM6. 29 Ibid, Exhibit CEM7. 30 Ibid, Exhibit CEM8. 31 Ibid, Exhibits CEM9 and CEM10. -- 8 of 14 -- 9 the disclosure statement had been varied in respect of Body Corporate levies and Community Management Statement. 32 [21] Under cover of a letter dated 22 December 2008 Azzura’s solicitors provided to the respondent’s solicitors a PAMDA Form 30c, BCCMA Form 14, Contract of Sale and a Second Further Statement, again drawing the respondent’s attention to the warning statements contained therein.33 The Second Further Statement advised variations to the Body Corporate levies, the Community Management Statement, the Utilities Service Supply Agreement, Hot Water Supply Agreement, subdivision of the land, schedule of finishes and Building Management Statement. [22] On 3 June 2009 Azzura’s solicitors advised the solicitors for the respondent that the lodgement of the plans of the subdivision and Community Management Statement would be taking place shortly and reminded Ms Eyles- Bennett to prepare to effect settlement in accordance with the terms of the contract. 34 The date of settlement was identified as the date that is 14 days (unless expressly varied by the parties) after Azzura gives notice that the plan and scheme have been established and registered at the Department of Natural Resources, Mines and Water.35 [23] On 4 June 2009 Plass Lawyers informed Azzura’s solicitors that they no longer acted for the respondent in this matter and provided a contact address for Ms Eyles-Bennett. 36 The solicitors for the applicant wrote directly to Ms Eyles-Bennett the following day (5 June 2009) providing same advice as they had to the respondent’s former solicitors on 3 June 2009. 37 [24] On 13 July 2009 Azzura’s solicitors wrote directly to the respondent advising that the plan and Community Management Statement “has been lodged for registration with the Department of Natural Resources and Water on 10 July 2009” and that they “shall notify you upon registration for settlement”. The letter concluded “please finalise your finance for the pending settlement”.38 By letter dated 31 July 2009 Ms Eyles-Bennett was informed by Azzura’s solicitors that the plan of subdivision and scheme had been registered and that settlement was to occur 14 days after the respondent received this letter which was deemed to be 17 August 2009, with time being of the essence.39 According to the respondent40 she made an inspection of the development shortly after receiving the letter of 31 July 2009. [25] The new solicitors for Ms Eyles-Bennett (Munro Thompson) wrote on 7 August 2009 to the solicitors for Azzura requesting confirmation that the Body Corporate had been established and also requesting that copies be provided of 32 Ibid, Exhibits CEM13 and CEM14. 33 Ibid, Exhibits CEM15 and CEM16. 34 Ibid, Exhibit CEM17. 35 Ibid. 36 Ibid, Exhibit CEM18. 37 Ibid, Exhibit CEM19. 38 Ibid, Exhibit CEM20. 39 Ibid, Exhibit CEM21. 40 Affidavit of Jane Eyles-Bennett, paragraph 19. -- 9 of 14 -- 10 the fully executed scheme documentation. 41 On 11 and 12 August 2009 Azzura’s solicitors wrote to both the respondent and to Munro Thompson enclosing a settlement statement and advising the time and place for settlement. 42 [26] A notice of termination under section 367 of PAMDA dated 17 August 2009 was given to Azzura by the respondent citing Azzura’s failure to include with the proposed contract a statement directing the respondent’s attention to the Warning Statement, Information Sheet, and Disclosure Statement as required by PAMDA.43 This was the first indication given by Ms Eyles-Bennett of her intention not to settle the contract of sale. On 17 August 2009 Azzura’s solicitors again wrote to Munro Thompson advising the time and place for settlement that day.44 Ms Eyles-Bennett did not attend at the nominated time and place for settlement on 17 August 2009 and the following day the applicant’s solicitors wrote to Munro Thompson indicating that Azzura remained ready, willing and able to settle and advising that Ms Eyles-Bennett was in breach of the contract and that Azzura reserved all its rights.45 [27] The rights of a buyer if a warning statement is not given or is not effective are set out in section 367 of PAMDA. The section relevantly provides that: “367 Buyer's rights if a warning statement is not given or is not effective (1) This section applies if— (a) a warning statement requirement for a proposed relevant contract is not complied with and notice is not given under section 366C; or (b) a warning statement is of no effect under section 366D(2), (3) or (4). (2) The buyer under a relevant contract may terminate the relevant contract at any time before the relevant contract settles by giving signed, dated notice of termination to the seller or the seller's agent. (3) The notice of termination must state that the relevant contract is terminated under this section. (4) If the relevant contract is terminated, the seller must, within 14 days after the termination, refund any deposit paid under the relevant contract to the buyer.” [28] The difficulty confronting the respondent in this regard is that her affidavit does not include any allegation that the necessary warning statements required 41 Affidavit of Catherine Elizabeth Maluish, Exhibit CEM22. 42 Ibid, Exhibits CEM23 and CEM24. 43 Ibid, Exhibit CEM25. 44 Ibid, Exhibit CEM28. 45 Ibid, Exhibit CEM29. -- 10 of 14 -- 11 to be affixed to the contract for sale and the First and Second Further Statements were absent or missing or that she misunderstood her rights or entitlements prescribed by the section. Furthermore clause 13 of the contract materially provided: “13. Statements Required by Law 13.1 The Buyer acknowledges that before signing this Contract it has received: … e) A Warning Statement under the PAMD Act, attached as the top sheet to this Contract. The Buyer warrants that (if the Warning Statement is signed) that it was signed and dated by the Buyer before the Contract was signed; f) An information sheet under the BCCM Act, that was attached immediately below the Warning Statement referred to in clause 13.1(e); … 13.2 The Buyer warrants that it has read and understands the documents listed in Clause 13.1 and where necessary has signed and completed same. 13.3 The Buyer acknowledges that the Seller has relied upon the warranty given by the Buyer in Clause 13.2 in deciding to enter into the Contract. If any of the warranties are incorrect, the Seller may suffer damage or loss and may exercise its rights under clause 33 of this Contract on the basis that a breach of any of these warranties is a breach of the Contract.” [29] The respondent’s right to have her attention directed to the Warning Statement was a statutory right created for Ms Eyles-Bennett’s private benefit which she could, by her conduct, waive. 46 The failure of the respondent in this case to depose to not receiving the necessary documents or to any lack of understanding of her rights to terminate or that her attention was not drawn to the warning statements is a serious obstacle to her claim was entitled to terminate the contract pursuant to section 367 of PAMDA. Counsel for the respondent in his written outline of argument contends that a contest exists as to whether there was a further direction contemplated by PAMDA required to be given to the respondent when the contract was returned to her because it had not been witnessed. It is submitted on behalf of the respondent that on the basis that the factual issues are determined and it is found that a direction was not given to the respondent at the time of signing the contract, or when the 46 See Blackman v Milne [2006] QSC 350 per Douglas J at paragraph [20]. -- 11 of 14 -- 12 contract was returned to be witnessed then, as contemplated by PAMDA Ms Eyles-Bennett had a clear entitlement to terminate as she purported to do. Alternatively, it is submitted, the applicant is not in a position to discharge the onus of proof that it bears to establish that a valid direction was given and on that basis Azzura is not presently entitled to the relief sought. Counsel for the respondent submits that as the respondent has maintained that she has validly terminated the contract there are disputed issues of fact which can only be determined at a trial. [30] I would agree with the submissions of counsel for the respondent if the material upon which he relies had included any allegation of non-compliance by the seller with its obligations under sections 365 or 366B of PAMDA. It is not sufficient, in my view, for a buyer in the position of the respondent to simply maintain that she has validly terminated a contract. There must be some evidence put before the Court to establish the basis upon which such a claim is maintained. In my view there is simply no evidence to support any claim of right to terminate under section 367 in this case. I can only infer from the material that the respondent’s purported termination of the contract was the product of her concerns as to the changes proposed for her unit and the development generally rather than any belief that the obligations of the seller with respect to warning statements had not been observed. [31] The respondent further alleges non-compliance with the provisions of section 206(1), (6) and (7) of BCCMA which are in the following terms: “206 Information to be given by seller to buyer (1) The seller (the seller) of a lot included in a community titles scheme (including the original owner of scheme land, or a mortgagee exercising a power of sale of the lot) must give a person (the buyer) who proposes to buy the lot, before the buyer enters into a contract (the contract) to buy the lot, a disclosure statement. … (6) If the lot the subject of the contract is residential property, the seller must ensure that an information sheet (the information sheet) in the approved form and a warning statement are given as required under the Property Agents and Motor Dealers Act 2000, section 366, 366A or 366B. (7) If the contract has not already been settled, the buyer may cancel the contract if— (a) the seller has not complied with subsection (1); or (b) the seller has not complied with subsection (5) or (6), whichever is applicable.” [32] The same difficulties confront the respondent in relation to any alleged non- compliance with these provisions of BCCMA as have been identified with -- 12 of 14 -- 13 respect to the relevant provisions of PAMDA. Ms Eyles-Bennett’s affidavit simply fails to allege any non-compliance by Azzura with section 206(6) and (7) of BCCMA that would entitle her to lawfully terminate the contract. [33] However, it is submitted on behalf of the respondent that on the basis that the unit has been completed in a manner inconsistent with the disclosure’s made by the applicant, and assuming that this is established by the evidence, then Ms Eyles-Bennett had an entitlement to cancel the contract pursuant to section 217 BCCMA which relevantly provides as follows: “217 Cancelling contract for inaccuracy of statement The buyer may cancel the contract if— (a) it has not already been settled; and (b) at least 1 of the following applies— (i) the community management statement recorded for the scheme on its establishment or change is different from the proposed community management statement most recently advised to the buyer; … (iv) information disclosed in the disclosure statement, as rectified by any further statement, is inaccurate; and (c) because of a difference or inaccuracy under paragraph (b), the buyer would be materially prejudiced if compelled to complete the contract; and (d) the cancellation is effected by written notice given to the seller by the buyer not later than the latest of the following— (i) 3 days before the buyer is otherwise required to complete the contract; (ii) 14 days after the buyer is given notice that the scheme is established or changed; (iii) another day agreed between the buyer and the seller.” [34] Even if it be accepted for present purposes that subsections (a), (b) and (c) of section 217 of BCCMA apply to the respondent’s case, unfortunately for the respondent, the requirements of subsection (d) do not appear to have been observed. This is because the cancellation purportedly effected by written notice to the seller by the buyer has not occurred either three days before the buyer was otherwise required to complete the contract, or 14 days after the buyer had been given notice that the scheme had been established or had changed, or on another day agreed between the buyer and the seller. On the material before me it would appear that the later of those times nominated in subsection (d) had expired prior to 17 August 2009, which was the date of the purported terminated for inaccuracy under the relevant provisions of BCCMA. -- 13 of 14 -- 14 Accordingly, the respondent is not able to establish any entitlement to cancel the contract pursuant to section 217 BCCM. [35] Although, for the reasons expressed above, the respondent did not validly terminate the contract under either PAMDA or BCCMA, it is open for Ms Eyles-Bennett to pursue an action for damages under the Trade Practices Act should she so desire. [36] The orders sought in the originating application in paragraphs 1 and 2 should be granted. I therefore make a declaration that the applicant validly terminated the contract for the sale of land between the applicant and the respondent dated 28 September 2007 and situate at “Elston Grandsurf Resort”, corner Hamilton Avenue and Surfers Paradise Boulevard, Surfers Paradise in the State of Queensland (more properly described as Lot 51 on SP191989, county of ward, parish of Gilston, title reference 50776551). I further order that the deposit in the sum of $66,000 be forfeited to the applicant. I further order that the respondent is to pay the applicant’s costs of an incidental to the application to be assessed. Costs of and incidental to the application to be assessed on the ordinary basis of assessment. I am not persuaded to order that costs be assessed on an indemnity basis given the failure of the applicant to have attended to its obligation with regard to stamping of the contract prior to the date of hearing. -- 14 of 14 --