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REIQ Journal : February 2010
IN THE MATTER of Arc Holdings (Aust) Pty Ltd --v- Riana Pty Ltd and Reppals (1) Pty Ltd (judgment delivered on 11 December 2009), the Supreme Court of Queensland closely considered the de nition of the term "residential property" as employed in sections 17(3) and 17(4) of the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA). In that case it was necessary to consider whether a contract for the sale of certain land was one which was subject to the warning statement provisions expressed in Chapter 11 Part 2 of the PAMDA. The facts The contract was for the sale of vacant land to a property developer. The land was the subject of a development approval permitting the construction of 54 townhouses; No warning statement was a xed to the contract as the rst or top page; The purchaser relied upon the failure to annexe the warning statement to justify its termination of the contract; The vendor refused to accept the purchaser's purported termination and refused to refund the $250,000 deposit held by it; The purchaser issued proceedings against the vendor and the real estate agent for failing to comply with the warning statement provisions of the PAMDA; The plainti sought recovery of the deposit and the moneys it had expended in securing building approval from the Gold Coast City Council; It was conceded by the agent that it did not annexe the warning statement to the contract because it did not consider the contract was for "the sale of residential property". The definition Section 17 of the PAMDA de nes property as "residential property" if it is "a single parcel of land on which a place of residence is constructed or being constructed, or a single parcel of land in a residential area". It was the second de nition that was crucial in the case. What is land in a "residential area"? The purchaser's argument The purchaser contended that the property was land in a "residential area" because the land was identi ed, in a planning strategy map issued by the Gold Coast City Council, as land "upon which residential development was an appropriate use". The vendor and agent's argument The agent and the vendor argued that the property was not land within a "residential area" because: The property was identi ed in the relevant domain map as "private open space domain"; and It was not permissible to go to a subsidiary map (namely the planning strategy map) to determine whether the property was in a relevant identi ed "area" because domain maps prevail over subsidiary planning strategy maps. The obligation to issue warning statements -- Is the land in a "Residential Area" or not? By Brett Heath, Special Counsel, Carter Newell Lawyers REIQ Journal February 2010 33 L l I
December January 2010