With the help of Ladini’s lawyer, they soon nutted out terms: a $100,000 non-refundable option fee payable immediately on a $2.5 million option with a put/call date in two years.  

The grantee could also elect to extend the option period by 12 months and at settlement need only pay $1 million in cash, with interest free vendor finance for the balance over a further five year period. 

Not bad development terms.

Maybe so, but with no evidence of the value of the land against which to compare the price that was being paid, it could not be said to be so one-sided, as to be unconscionable or “grossly improvident”.   

Neither was there any evidence that age (67 years); infirmity (a recent stroke and heart problems); or lack of assistance (the Street’s insisted on avoiding the expense of their own lawyer), put them in the position of being taken advantage of. 

The principal argument the Streets – pensioners to the extent of about $1000/week – relied on in purporting to terminate the option in July 2011, was that Ladini had reneged on a side agreement to pay down $5,000 per month to them during the option period. 

In support, Street swore that immediately after signing up the option agreement in the solicitor’s office in June 2009, they descended to the car park where Ladini – circumstances that her honour concluded were unlikely to have actually occurred – “opened the boot of his car and took out $5,000 in cash and handed it to them”. 

A Gold Coast restauranteur, Ladini did in fact advance a total of $53,000 prior to the purported termination but the court concluded that this was to provide cash assistance to help out his friend “to the extent he could and therefore in a non-binding way”. 

There was, so held the court, “a lack of frankness in Mr Street’s responses” and he had recalled in evidence  more “what he wished for, rather than what happened”. 

In reality, there was no additional oral term to the agreement and hence the non-payment did not constitute any breach of the option. The offer to pay always “depended upon the respondent’s capacity to give it”.  

Having used up the $100,000 option fee, the additional $53,000 and their pension cheques of another $34,000, all within a 17 month period, they were “clearly living beyond their means”.

One might have thought that they would have at least been sensible enought to spend a little of that very large sum on some prudent legal advice.

But no. A case of penny wise and pound foolish? Hard to reach even go that far amongst such apparent extravagence. 

Perhaps merely a change of mind.

At least our impulsive do-it-yourselfers can still look ahead to eventually getting their hands on the sale proceeds – if they can even imagine a further 5 years out.

Let’s just hope for everyone’s sake, the Gold Coast real estate market has recovered a little by then.

Street & Anor v Ladini [2012] QSC 009 Mullins J 07/02/2012 

It was nothing less than contour intervals, that this time brought the Land Sales Act before the highest court in the state, as the buyer of two

 industrial sites on 8000m2 of un-subdivided land near Brisbane, sought to extricate itself from a $2.9 million deal.

As the January 2009 settlement date approached, HM Australia’s Lei Lei Lu refused to complete the Corymbia Place, Parkinson buys he signed up for in March 2008. 

The seller, it was alleged, had failed to properly comply with the LSA pre-contract disclosure requirements because the plan attached to the disclosure notice was non-compliant given the clarity – or supposed lack of it – of the contour lines that were “showing”. 

The court rejected the argument that two separate contour plans – one showing “natural surface contours” and the other “final surface contours” – were required. It is sufficient and indeed, more convenient, if the two sets of lines are shown on the one plan.

It was also not necessary for the mandatory information to be “immediately obvious to a lay person”. Rather, all that was needed was there to be sufficient information “from which the levels and intervals of the …. surface contours [could] be deduced … by someone familiar with contour plans”, eg a surveyor. 

The appellant’s third argument – that the contour interval for the natural surface contours should have been 0.5 m rather than the depicted 1.0 m – also failed. 

Including contours at the lesser interval would not have been “appropriate” given a stated degree of error of 0.3m on the public topographic maps from which the natural contour level data was drawn. 

“To use 0.5 m when that was the degree of accuracy would create a misleading impression of the accuracy of the data”. 

In contrast, the court approved the “showing” of the “final” contours – which were drawn at 0.5 m – as being the appropriate level of plan disclosure for providing purchasers with sufficient information on the finished product they would be signing up for. 

The appeal was dismissed and the specific performance order compelling HM to settle made in March 2011 after a four day trial, was affirmed.

HM Australia Holdings Pty Ltd v Treton Pty Ltd [2011] QCA 382 Muir, Fraser and Chesterman JJA 13/01/12

We assume by “one contract” she means a single disclosure obligation contained in the body of a contract - compared to the up to 10 separate forms that can now apply – rather than a government mandated contract form.

“We intend to rid the industry of unnecessary complications making it easier to buy and sell a home in Queensland,” said the Premier in her statement.

It ‘s about time.  Carter Capner Law has been a vocal part of the campaign over the last 3 years for reform of Queensland’s absurd and useless compliance rules.

But can we have any confidence that it will really happen? Is it just another never-will-be-fulfilled promise by media statement like that of her deputy in June concerning deregulation of agents commission?

Certainly a looming election adds urgency but even if an epiphany has struck our politicos and bureaucrats with the realisation that the $12.5 million wasted every month for zero gain just has to go, how can this mess be solved “by the end of February”?

The Queensland Law Society chimed in the following day that it welcomes “announcement to consolidate disclosure requirements…..but is guarded about proposed changes to move to “one contract”.

It’s obvious there’s concern at MP level that this issue could be an election sleeper. The media statement came only two days before the election announcement: a “clear the decks” measure to try to stem a backlash from the industry and its clients. Real estate offices can quickly become a network of PR machines that can influence the voting public’s intentions.

Let’s keep the premier to her word. Send an email reminder today to the minister to urge on her what needs to be done.

The current multitude of forms and disclosure is as confusing to buyers as it is useless as a consumer protection measure. The forms are mostly ignored. The farce would be highly amusing if being a complete waste of time was it the only fault. Tragically, transaction and disputations costs are painfully real and enormous: the resulting mayhem is nothing less than a catastrophe.

Abolition of the form 30 C statement, incorporating a warning  into the residential contract and elimination of the PAMDA requirement for “attention directing” notifications are top of the list.

But there are many others. Send the Premier a checklist of all the issues that require urgent fixing:-

• Land Sales Act disclosure must be incorporated  into the one single buyer disclosure statement;
• Tripwire form filling requirements for forms 27c & 22a etc – with their associated triple whammy of agent risk: no commission, being sued & fines – have to go;
• BCCMA forms – s 206 disclosure; the BCCM 14 warning statement and CMS – must be incorporated  into one single buyer disclosure statement;
• The PAMDA “residential property” definition must be clarified to remove it as a source of dispute;
• A single event  disclosure requirement for options rather than needing compliance BOTH at the time of agreement and every time the option is exercised;
• The prohibition on lawyers, who have even the remotest business connection to the agent, giving cooling off advice, must be removed;
• Sustainability declaration must go;
• Pool safety warnings must be incorporated into the one single buyer disclosure statement;
• Tree branch compliance must be incorporated into the one single buyer disclosure statement.

If they pull out all the stops, this can all be achieved by amending and passing what will become the Property Agents Act 2012.

Any new law will also impose re-numbering of approved forms and require replacement of pro forma notices and office precedents. The hours of re-tooling and re-training will be a bitter pill to swallow – particularly after the nauseating swill that has been dished up for the last 12 years – but worth it if done properly.

Colin Robertson lost control of his employer’s truck when its brakes failed and it careered into trees on Mt Tamborine’s steep and windy Mystery Road in May 2007.

In January 2008 he instructed solicitors to make a claim on the assumption that the vehicle had been inadequately maintained by his employer, an assumption deduced from a Department of Transport conviction of his boss Eric Stansfield, in the Southport Magistrates Court, over the faulty truck brakes.

A Workers’ Compensation & Rehabilitation Act Notice of Claim for Damages was served at the last minute – just before the expiration of the three year limitation -  in May 2010 and WorkCover initially accepted the claim, admitting compliance.

In October 2010 WorkCover’s solicitors, Jensen McConaghy, uncovered DOT records revealing the inspection of the truck – or lack of it – was performed by a third party, Leslie Sellin and notified their counterparts opposite that they considered that the Motor Accident Insurance Act (MAIA) applied. Sellin, they said, should be joined as a contributor.

But by letter of 2 November – recieved the following day at the lawyers’ office – WorkCover’s solicitors notified that, for the reasons previously explained, they now denied liability altogether.

What to do? The time to sue under the MAIA had come and gone.

Extensions of the 3 year time bar are allowed if an injured person becomes aware of some “material fact of a decisive character” that could contribute to a viable claim that wasn’t previously known or couldn’t be discovered had they made sensible enquiries.

Could this new fact – Sellin’s role in the truck maintenance – be relied upon as “a material fact of a decisive character” to bring a MAIA claim against him?

The court answered this question in the affirmative but there were still hurdles for Robertson to overcome.

Firstly, if WorkCover’s lawyers were capable of discovering Sellin’s role, should Robertson himself have sensibly made those enquiries earlier? Perhaps yes, but by entrusting lawyers to take whatever steps were necessary to protect his interests, the court ruled he had acted reasonably and no more investigation was required of him.

Almost there. But just to live dangerously, Robertson’s lawyers only filed their extension of time plea on 26 October 2011, more than one year after being notified by WorkCover’s lawyers of the MAIA issue on 6 October 2010.

The solicitors were now dicing with another time limit that lays in waiting for the unsuspecting: a court can only extend the three-year period up to a maximum of 12 months after the claimant had become aware of the “material fact of a decisive character”.

In a skilful reprise, the lawyers argued that the 12 month period had only commenced to run from 3 November 2010 (the date they recieved the WorkCover liability denial letter) thus allowing up until 3 November 2011 for the commencement of proceedings.

In her judgment given on the spot following the 1 November hearing, but published only last week, her honour agreed: “the material facts only attained the decisive character when the plaintiff [then] realised that if he did not take action ….he had the potential of not having a successful action at all”.

Having left things to the last minute of the eleventh hour, the law firm gained a reprieve. Mr Robertson will get his day in court.

The calculation of de-limiting lawsuit time periods is rarely straight-forward  but it appears that getting a lawyer on the job will preserve your rights however the job is executed. Seeking legal redress early was certainly the main factor in preserving Robertson’s claim beyond the usual time bar.

The lawyers’ vices had in fact proved to be their client’s virtue.

One has to ask just one further question: Even had the employer a role in the faulty brakes, could not a MAIA claim have been commenced anyway at the outset?

Robertson v Sellin & Suncorp [2011] QSC 421, Atkinson J, published 19/01/2012

James Geary, a 41 yr old fly-in fly-out haul truck driver, who arguably liked a fight more than a feed, was violently bounced around his cab as a 56 tonne rock was dropped down into the 400 tonne tipper.

At stake in the 3 day Townsville trial, particularly because of a potential $1.3 million future earnings loss claim – generated by a six figure pay rate - was the extent of the plaintiff’s lumbar spine injury and the progression of pre-accident lower back symptoms that Geary denied under cross examination.

For 12 hour shifts in the dump truck, equipped with “tyres twice as tall as him” – two weeks straight on, one week off – he took home around $1,400 p.w. with all transport, food and accommodation on the boss’s tab.

Geary’s lawyers were skilful enough to dodge several missiles aimed at his truthfulness: His return to work attempts were considered “impressive” notwithstanding “overwhelming” evidence that he consistently misled employers with claims of a clean medical history, to increase his job selection prospects.

Equally fortunate: implications of isolated amphetamine use; minor tax return discrepancies; a subsequent motor accident; a 16 schooner a day drinking habit on a “big day”; bar fights apparantly too numerous to mention; and contradictions in his account of a domestic violence order, were al – of themselves – largely overlooked by the court.

But his honour was not prepared to ignore the “catch me if you can” witness box denial of the effect of an injury two decades earlier and his football aches & pains borne from a 15 yr rugby league career that included a stint at Souths in Brisbane.

That was – so held the court – nothing less than a deliberate strategy “to maximise recovery” as a result of which caution needed to be exercised about the veracity of each of his claims.

Contrary to the finding of fact that he already had a significant “multilevel degenerative back disease which was probably progressive”, our pugulist plaintiff had disingenously claimed to all three examining orthopaedic surgeons – Malcolm Wallace, Bruce McPhee and David Morgan – to have been asymptomatic in the relevant parts of his anatomy.

Because the pre-existing back problems would likely in his view, progress to “the same order” in the fullness of time regardless, his honour had to apply a lesser comparative significance - as to the picture of his overall low back issues – to the later injury, than all of the specialists had in their written reports to the court.

You might think that this spelt doom for any future income loss award.

Not so. Because the former salary represented such a high starting point, there was always some possibility – “a chance that into the future” – there would be some degradation in earning power, in this case assessed at $300 weekly, total $200,000.

General damages ($50,000), net salary loss for the 6 years up to the trial ($70,000) plus medical etc expenses brought the judgment up to $380,000 a fraction of the $1.2 million contended for, but a good escape for our battle-scared warrior who was – in spite of all his flaws – accepted to be a hardworker who was never alcohol affected on the job.

In a further stroke of good fortune, the mine site employer failed to claw back out of the judgment, $16,500 paid to Geary as a goodwill measure following the accident.

Given the weight of so many unusual circumstances, perhaps an even handed outcome all round.

Postscript: On 2 February 2012 his honour awarded costs to the plaintiff but only up to August 2011 and because the plaintiff had failed to “better” the defendants’ offer of $500,000, the plaintiff was ordered to pay the defendants’ legal costs from August 2011 when the defendants’ offer expired, including the costs of the trial.

Geary v REJV Services Pty Ltd & Ors [2011] QSC 419  Brisbane North J, published 17/01/2012

None other than Suncorp Metway again became a casualty to such familiar desire when it was enticed into a 2 day Supreme Court liablity-admitted odyssey concerning the medical history of one Vivien Hooper, a 54 yr old Hairdresser from Rockhampton.

Dr Flanagan, a consultant Psychiatrist, had assessed a 5% impairment from the nose to tail accident in August 2006, for PTSD and a driving phobia. This was not contested.

Not so the orthopaedic prognosis. Suncorp – contending that the current symptoms were all of an earlier genesis – offered economic damages at a fraction of the $600k asked.

The court accepted that Vivien – who had a senior hairdressing career for more than 20 years until 1993 when she took up the care of her children – intended to resume employment but for the accident.  In her favour was that she had completed computer and administrative studies TAFE courses and a STEPS course: all reasonable measures to prevent her skill base from atrophying and to transition back into work.

Two expert clippers, Sandy Turner and a formidable Mrs Vivash, opined that our plaintiff had otherwise excellent prospects of hairdressing success or as a teacher/instructor, as her qualifications and experience were highly sought after.

Suncorp took aim, contending her pre-existing injuries rendered her incapable of the ardour of hairdressing.

On this tack they ran well aground. Although Vivien had sought prior treatment for low-back pain and discomfort, similar to the symptoms from the 2006 accident, his honour concluded there was no evidence that as a result of those other problems “she would have eventually ended up in her present pitiable state.”

Although similar, there was no evidence – so held the court – of identical pre-accident symptoms in the same lower back region of her anatomy. Referring to Purkess v Crittenden, his honour noted that, a “defendant [must] show ‘with some reasonable measure of precision’, what the pre-existing condition was and what its future effects were.”

Helping to gain steam for Suncorp’s eventual tearing apart on the rocks, was the joint report of orthopedists Denis Nave (plaintiff) and Prue Fitzpatrick (Suncorp) that assessed 5% lumbar impairment: a report that lent no support for the insurer’s argument.

Past economic loss was assessed at $115,000.00 and future loss at $130,000.00 – all against Suncorp’s broadside that she was due a mere $25,000.00 for both past and future.

Once well stuck, the insurer desperately argued for a nil gratuitous care award as she “could still carry out day to day tasks, albeit with some difficulty”. This argument too, was rejected by Justice McMeekin: “Driving until one is crippled with pain is not, on any view, reasonable.”  $30,000.00 was allowed for past care and $85,000.00 future.

The final shots from the scuttled wreck were a volley at Viv’s future expense tally. The shots flew wide.  Our plaintiff was awarded $70,000.00 for future expenses and $12,000.00 for specials.

Total damages: $507,000. Such bravado!

Hooper v King [2011] QSC 324 Rock’n McMeekin J, published 16/12/2011 

Ever so close, abolition of the form 30 C warning statement was almost achieved with a review committee recommendation that buyer warning statements be incorporated into the residential real estate contract itself and for PAMDA “attention directing” pre-contract notifications, to be eliminated.

Also dead on the wind is the June promise of commission de-regulation. On that score there was just nothing done after the media release had raised the spirits of the somewhat doldrums-shocked industry.

PAMDA reform got as far as a debate listing the Property Agents Bill that first saw the light of day more than 12 months ago.

The abolition of separate warning statements and associated contract presentation ceremony – that we have previously described as a millstone around the collective necks of Queensland real estate agents since 2000 – would be the single greatest compliance relief that government could offer.

Millions of dollars are wasted every month on  compliance and disputation costs from absurd regulation. Let’s see what election candidates are prepared to commit to – and how quickly they say they can provide a fix – to remedy once and for all the absurdly wasteful PAMDA mess.

Their complaint as settlement date approached was that the developer was no longer capable of delivering “a lot in a residential tower called The Oracle” but – having contrary to expectation sold the letting and management rights to a hotel chain – could only deliver title to a lot in “a hotel branded Peppers Broadbeach“.

The buyers did not allege having been misled. Rather, their case was that the contract itself – into which BCCMA s 215 deems disclosure statements incorporated – dictated a more sedate style of property management for the Broadbeach edifice, that would yield medium to long term tenancies.

The plaintiffs terminated eight separate contracts for their “luxurious up-market” residences and sought declarations that the seller – a Niecon company now in receivership – had repudiated because of the “hotel” branding.

Always a problem for their side of the contest was that the complex – to be managed by Mantra who also owns the down-market “Breakfree” brand and to which our investors may well have taken an equivalent umbrage – differed little as to its proposed configuration, to countless other rental pool residential towers on the glitter strip.

Perhaps best described as it is by online travel reservation site Expedia.com as an “aparthotel”, the court noted that participating investor apartment “guestrooms” are unlike those of a true hotel because they are fully self-contained multi-room apartments. Yet the complex includes hotel-like features: a restaurant and bar (still under construction) and offers valet parking and room service.

These attributes and the high guest throughput due to Peppers’ inevitable concentration on short-term stays would – so said the buyers – generate a tenancy turnover which was incompatible with the “World Class Lifespace” description under which the complex was marketed.

Fatally for them as it turned out, a resort or even a hotel (into which definition his honour declined to include it), is “residential” as opposed to commercial – the sense in which the contract employed the term.

The finding in the buyers’ favour that their units had indeed been sold to them as part of “The Oracle“ but had since been all but completely re-branded as “Peppers Broadbeach“, did not assist: this wasn’t something their contracts prevented.

And although satisfied that some plaintiffs were even materially prejudiced by this change, his honour also denied any BCCMA termination entitlement as the prejudice did not come about by any incomplete or inaccurate disclosure.

While the buyers vaguely claimed various deficits –  loss in value, higher than usual rent collection commission, higher rate of depreciation, higher body corporate expenses such as insurance, obstacles to long term rentals from off-site real estate agent – there was no evidence called to prove any such harm.

No doubt with hindsight Niecon would have included a “naming rights” clause to have put the issue beyond dispute. Its absence leads one to the conclusion that the rights negotiation with a “hotel” chain may well have been an afterthought.

So in reality buyer and seller likely envisaged a management/caretaker arrangement like so many other Gold Coast high-rise, well let’s face it, aparthotels: where there are always a high number of short term guests.

One did not need to defer to any Oracle to prophesise that. Foreseeing the intervening GFC was another matter entirely.

Had the buyers devoted the same level of attention to their contract paperwork that they gave to their litigation, it may have alerted them to consider exactly the style of residential arrangement they were signing up to. It was always open to propose a special condition to specify that rentals must be, for example, of at least a 12 month term.

What’s in a name? When you get down to dollars and cents, probably not a lot.

Gough & Anor v South Sky Investments Pty Ltd; Wicks v South Sky Investments Pty Ltd; NOA 8338 Pty Ltd & Anor v South Sky Investments Pty Ltd; Ryan v South Sky Investments Pty Ltd; Linemint Pty Ltd & Anor v South Sky Investments Pty Ltd; Walsh & Anor v South Sky Investments Pty Ltd; Taylor & Anor v South Sky Investments Pty Ltd; Parsons & Anor v South Sky Investments Pty Ltd [2011] QSC 361 (10/12179) Brisb Applegarth J 2/12/2011

The High Court emphatically pronounced that “Canberra” was complicit in illegally shoving Moti into a seat that had been “freed up” on the 3.10pm Solomon Airline 737 service from Honiara to Brisbane on 27 December 2007. 

For that reason his subsequent indictment in the Queensland Supreme Court for sex-tourism crimes was tainted with an “abuse of process” and will be quashed. 

The government’s case – it can only fairly be described as exactly that: a prosecution with all the worst features of Executive interference – spectacularly collapsed when it failed to clear the first hurdle, albeit that it took the scrutiny of three appeals for the debacle to materalise. 

Revelations of the facts relating to other defence arguments and issues will prove equally shameful, if they can ever be fully brought to light. 

First, the High Court left open the question for others to decide whether the curious payments of living expenses by the thoroughly discredited Australian Federal Police to crown witnesses would unfairly colour their evidence: “That issue could be the subject of suitable instructions to the jury” if the trial were to proceed. 

Second, the law under which Moti was charged was enacted in 1994 to prevent Australian tourists and ex-pats going unpunished for child sex crimes committed in another country when that other country was unwilling or unable to prosecute. 

It was never intended to be mis-used in the way it was: to harass a resident of another nation and where judicial process had already been engaged to determine the alleged offence. 

If Moti was resident elsewhere at the time – as he was – on what basis can Australia claim to have properly interfered? 

If the events were already been dealt with by a court elsewhere – as they were – why should he have been compelled to defend the charges again in Australia? 

Third, Moti was a central figure in the government of former PM Sogovare that thumbed its nose at the Howard government’s do-what-we-say agenda in the Pacific. The popular unrest that brought Sogavare to power was seen byAustralia to be against its interests and those of the Regional Assistance Mission (RAMSI) that was predominately led by the AFP. 

Moti himself was seen as an antagonist of the new Solomon Islands PM who took power on 20 December 2007,  just seven days before the  illegal abduction. The Solomons’ government – with whom Australia was found to have conspired – “had more than once” been told by Canberra that it wanted Moti removed. 

The extra-territorial application of a domestic law is controversial in itself. But to rope-collar a minister of a foreign government and extend a foreign law to depose him in his domicile to aid the establishment of a regime more favourably disposed to becoming a client state? 

It is nothing other than Executive abuse in the extreme, so abhorrent, that it must be fully exposed and the perpetrators themselves offered a taste of justice. 

Fourth, what exactly was the mission of the AFP in the latter part of 2007? To what extent did it operate as a para-military organ of arrogant and even illegal Australian foreign policy? 

Abuse – and possibly, crimes – have been committed against Mr Moti but also against the Solomon Islands people. Not to mention the ultimate integrity of this nation. 

The full story must be told: what is our Bay of Pigs must not be allowed to brand us as Ugly Australians in the many eyes of the region.

Moti v The Queen [2011] HCA 50 (7 December 2011)