Burnitt & Anor v Pacific Paradise Resort P/L

[2006] QCA 309

Queensland Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Sale of land
3. › Instalment contract
4. › Termination
5. › Validity of termination without statutory notice
6. › Whether deposit exceeding 10 per cent of purchase price made contract an instalment contract
7. › Property Law Act 1974 (Qld), ss 59, 72
1. Contract
2. › Sale of land
3. › Specific performance
4. › Executed written contract
5. › Whether oral arrangement deferring completion was variation requiring writing or mere forbearance
6. › Distinction between variation and arrangement as to mode of performance
7. › Property Law Act 1974 (Qld), s 59
1. Contract
2. › Parol evidence rule
3. › Written contract
4. › Parol variation
5. › Whether parol agreement to vary terms of written contract enforceable
6. › Whether original written contract enforceable notwithstanding parol variation
1. Appeal
2. › Standard of appellate review
3. › Findings of fact
4. › Sustainability of factual findings by trial judge
5. › Whether findings open on the evidence

Quick Take

An oral arrangement between parties to a land sale contract that the completion date will not be strictly enforced is not a variation of the contract requiring writing under s 59 of the Property Law Act 1974 (Qld), but an arrangement as to the mode of performance. Where a written contract specifies a deposit exceeding 10 per cent of the purchase price, the contract is an instalment contract under Division 4 of Part 6 of the Property Law Act, and termination requires compliance with the statutory notice procedure in s 72(1), regardless of any alleged oral agreement for a lesser deposit. A parol variation of a written contract for the sale of land that does not comply with the Statute of Frauds cannot prevent enforcement of the original written contract in its unaltered form.