Ross Nielson Properties Pty Ltd v Orchard Capital Investments Ltd

[2011] QCA 49

Queensland Court of Appeal

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Interrogate

Catchwords

1. Statutes
2. › Acts of Parliament
3. › Interpretation
4. › Particular words and phrases
5. › 'Contract for the sale of' residential property
6. › Whether complex development agreement containing put option exercisable only upon fulfilment of multiple contingencies constituted 'relevant contract'
7. › Property Agents and Motor Dealers Act 2000 (Qld), ss 10, 17(4), 363, 364, 365(1), 366, 367(2), 368, 369
1. Real Property
2. › Sale of land
3. › Options
4. › Put and call options
5. › Whether put option embedded in development agreement made the agreement a 'contract for the sale of' land
6. › Distinction between standalone option agreements and options as mechanisms within broader commercial agreements
7. › Property Agents and Motor Dealers Act 2000 (Qld), s 364
1. Consumer Protection
2. › Residential property transactions
3. › Scope of consumer protection provisions
4. › Whether consumer protection provisions directed at sale of residential property apply to complex commercial development agreements
5. › Property Agents and Motor Dealers Act 2000 (Qld), Ch 11

Quick Take

A complex development agreement containing a put option that is exercisable only upon fulfilment of multiple contingencies (failure of the primary development purpose, rejection of alternative strategies, and failure to sell within a specified period) is not a 'relevant contract' under s 364 of PAMDA. The decision in Vale 1 v Delorain, which rejected the 'substance test', does not dictate that any agreement containing a put option relating to residential land is necessarily a 'relevant contract'; Vale decided only that marketing provisions added to a standalone option agreement did not deprive it of its character as a 'relevant contract'. The consumer protection purpose of Chapter 11 does not require extending the definition to cover commercial development agreements where the parties cannot aptly be described as 'buyer' and 'seller' of residential property.