SUPREME COURT OF QUEENSLAND

SUPREME COURT OF QUEENSLAND CITATION: Three P/L v Body Corporate for Savoir Faire Community Titles Scheme 3841 [2008] QCA 167 PARTIES: THREE PTY LTD ACN 069 497 516 (respondent/plaintiff/respondent) v BODY CORPORATE FOR SAVOIR FAIRE COMMUNITY TITLES SCHEME 3841 (applicant/defendant/appellant) FILE NO/S: Appeal No 11825 of 2007 SC No 11051 of 2005 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal General Civil Appeal DELIVERED ON: 20 June 2008 DELIVERED AT: Supreme Court at Brisbane Brisbane HEARING DATE: 19 May 2008 JUDGES: de Jersey CJ, Fraser JA and Mackenzie AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made. ORDERS: 1. Allow the appeal and set aside the judgment of 6 December 2007. 2. In lieu thereof judgment be entered in favour of the defendant against the plaintiff on its claim. 3. It be declared that the contract described in the plaintiff s claim was rendered void by subsection 19(8) of the Land Sales Act 1984 (Qld). 4. The plaintiff pay the defendant s costs of and incidental to the proceedings, including the defendant s application for summary judgment, to be assessed. 5. The respondent pay the appellant s costs of the appeal to be assessed. CATCHWORDS: CONTRACTS GENERAL CONTRACTUAL PRINCIPLES ILLEGAL AND VOID CONTRACTS ILLEGAL BY STATUTE PARTICULAR STATUTES where the appellant made a contract to sell a proposed allotment to the respondent where no effective development approval for the proposed allotment existed at the time of the contract where by operation of section 8 of the Land Sales Act 1984 (Qld) the contract was void where subsection

2 19(6) provided an exception to the invalidity created by section 8 in circumstances where an application for a grant of exemption from development approval had been made where subsection 19(7) required that such an application be made within 30 days after the event that marks the entry of a purchaser upon the purchase of the proposed allotment where the purchaser signed the contract before it was executed by the vendor where the application for exemption was made more than 30 days after the purchaser signed the contract but less than 30 days after the vendor executed it whether the application for exemption had been made in time consideration of the meaning of the term the event as described in s 19(7) consideration of when a person enters upon a purchase for the purposes of the Act consideration of the meaning of purchaser as defined in s 6A(1)(a) of the Act Acts Interpretation Act 1954 (Qld), s 14A, s 14B, s 32, s 32A, s 32AA Auctioneers and Agents Act 1971 (Qld), s 67, s 67A Land Sales Act 1984 (Qld), s 6, s 6A, s 8, s 9, s 10A, s 11, s 19, s 21 COUNSEL: SOLICITORS: Francis v NPD Property Development Pty Ltd [2004] QSC 202, referred to IVI P/L v Baycrown P/L [2005] QCA 205, cited Noble v The Public Trustee of Queensland [1994] 1 Qd R 402, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited Three P/L v Body Corporate for Savoir Faire Community Title Scheme 3841 [2007] QSC 358, varied Re Rosemacs Pty Ltd s Caveat [1994] 1 Qd R 137, referred to Rymark Australia Development Consultants Pty Ltd v Draper [1977] Qd R 336, cited Wan v NPD Property Development Pty Ltd [2005] 1 Qd R 340; [2004] QSC 232, distinguished S S W Couper QC for the appellant P J Dunning QC with S A McLeod for the respondent Home Wilkinson Lowry for the appellant Warlow Scott Lawyers for the respondent [1] de JERSEY CJ: I have had the opportunity of reading the reasons for judgment of Fraser JA. I agree with the orders proposed by His Honour, and with his reasons. [2] The critical words in s 19(7), the event that marks the entry of a purchaser upon the purchase, themselves suggest the legislature was not confining itself to the formation of a contract. Otherwise one would have expected an orthodox reference to the formation of the contract, or some such form of words. It is the unusual

3 form of words used in the provision which gives strength to the construction of s 6A(1)(a) expressed by Fraser JA. [3] There is then no reason why the definition in s 6A(1)(a) does not apply to s 19(7), whereas it does apply to other provisions. A disparate piece-meal construction of the legislation should be avoided. [4] In the case of a form of contract signed only by a prospective purchaser, it is, in terms of s 6A(1)(a), intended to bind provided, that is, it is not withdrawn prior to any purported acceptance. That it does not bind immediately is of limited significance, once one acknowledges it binds immediately on acceptance. In the relevant sense, and in the context of the unusual terminology of s 6A(1)(a), such an offer binds the offeror to a contract upon acceptance of the offer. [5] It is the unusual terminology of this legislation, where, by contrast, the language of contract law is precise and well understood, which in my view strongly militates in favour of the construction expressed by my colleague. [6] FRASER JA: The defendant in proceedings in the Trial Division appeals from the dismissal of its application for summary judgment against the plaintiff. 1 [7] The appellant, as vendor, made a contract with the respondent, as purchaser, for the sale and purchase of a "proposed allotment" as defined in s 6 of the Land Sales Act 1984 (Qld). 2 When the contract was made there was no effective development permit approving the proposed reconfiguration of the appellant's land or the operational work required for the reconfiguration. Section 8 of the Act prohibited the appellant from selling the proposed allotment in those circumstances and rendered the contract void, subject only to the effect of s 19. 3 [8] Subsection 19(6) authorised a sale otherwise prohibited by s 8 if it was conditional upon the grant of an exemption under s 19(2). The contract included such a condition. The sale therefore was not prohibited and the contract was not rendered void by s 8, but the appellant contends that the contract was rendered void by s 19(8) because the necessary application for exemption was not made within the time limited by s 19(7). The Land Sales Act 1984 (Qld) [9] Section 8 provided: "... (1) A person may sell a proposed allotment of freehold land only if, when the purchaser enters upon the purchase of the allotment 1 2 3 Three P/L v Body Corporate for Savoir Faire Community Title Scheme 3841 [2007] QSC 358. The Act has been amended on numerous occasions. For this case the relevant form of the Act is contained in Reprint No 4D, which includes all amendments up to Act No 13 of 2002. Three P/L v Body Corporate for Savoir Faire Community Title Scheme 3841 [2007] QSC 358 at [4].

4 (a) (b) (c) local government unconditional approval of the subdivision application for the land is in force under the Planning Act; or local government approval of the subdivision application for the land, subject to conditions other than conditions requiring the applicant to construct works on the land, is in force under the Planning Act; or the following approvals are in force under the Planning Act- (i) (ii) approval of the subdivision application for the land, subject to conditions requiring the applicant to construct works on the land; and approval of the engineering drawings and specifications for the works mentioned in subparagraph (i). Maximum penalty 200 penalty units or 1 year s imprisonment. (1A) [10] Section 19 provided: (2) An agreement made in contravention of this section is void and any person who had paid money thereunder shall be entitled to recover the amount thereof, together with the amount of interest (if any) that has accrued in respect of that amount since the money was so paid, by action as for a debt due and owing to the person by the person to whom the money was paid." "(1) Each of the following persons may apply to the registrar, in the approved form, for exemption from all or any of the provisions of this part in relation to land that is to be subdivided into not more than 5 allotments-- (a) a person by or for whom the land is to be subdivided; (b) a vendor or purchaser of a proposed allotment - (1A) However, a purchaser may apply for exemption only with the vendor s consent. (2) Subject to subsection (2B), the registrar must, within 15 days of receipt of the application - (a) (b) grant the application by instrument of exemption; or refuse it by written notice to the applicant.

5 (2A) If the registrar grants the application - (a) (b) the registrar may grant it subject to any other condition specified in the instrument; and the registrar must specify in the instrument the provisions of this part in relation to which the exemption is granted. (2B) (2C) If the application is defective in a way that hampers the registrar s consideration of the application, the registrar may seek further information from the applicant to cure the defect. An exemption under this section is given on the condition that the land is subdivided in accordance with the application, subject to any other condition specified in the exemption instrument.... (4) While an exemption granted under subsection (2) subsists such of the provisions of this part as are specified in the instrument of exemption shall not apply in relation to the sale or purchase of 1 or more than 1 of the proposed allotments in respect of which it was granted.... (6) Notwithstanding the provisions of section 8, a person may agree to sell a proposed allotment that is land in respect of which a person is eligible to make an application for exemption under subsection (1) if the instrument that binds a person to purchase the proposed allotment is conditional upon the grant under subsection (2) of an exemption from section 8 or from that section and any other provision of this part. (7) In a case to which subsection (6) applies application for the exemption shall be made within 30 days after the event that marks the entry of a purchaser upon the purchase of the proposed allotment. (8) Where application for exemption for the purposes of subsection (6) is not received by the registrar within the time prescribed by subsection (7) the instrument in question referred to in subsection (6) is void and any person who has paid money thereunder shall be entitled to recover the amount thereof, together with the amount of interest (if any) that has accrued in respect of the money since it was so paid, by action as for a debt due and owing to the person by the person to whom the money was paid."

6 [11] The following definitions in s 6 and s 6A are relevant: "6 Definitions In this Act agreement means (a) (b) a written contract of sale, or another instrument, under which a sale or purchase is entered upon; or an oral contract of sale under which a sale or purchase is entered upon that is enforceable because of (i) a memorandum or note satisfying the Property Law Act 1974, section 59; or (ii) the common law doctrine of part performance.... 'purchase' includes - (a) (b) (c) (d) (e) agree to purchase; acquire an option to purchase; enter upon a transaction that has as its object the acquisition of a right (not immediately exercisable) to purchase or to be given an option to purchase; sign an instrument that is intended to legally bind a signatory to purchase; enter upon a transaction or sign an instrument with a view to any person securing or attempting to secure another's agreement to sell.... sell includes- (a) (b) (c) (d) agree to sell; and grant an option to purchase; and enter upon a transaction that has as its object the grant of a right (not immediately exercisable) to purchase or to be given an option to purchase; and procure a person to enter upon a purchase. 6A Meaning of purchaser

7 (1) For the purposes of this Act - (a) (b) a person who signs (personally or by an agent) an instrument that is intended to bind the person (absolutely or conditionally) to purchase a proposed allotment or a proposed lot shall be taken to have entered upon a purchase of the allotment or lot and in this Act is referred to as 'the purchaser'; a person who signs (personally or by an agent) an instrument that is intended to bind the person (absolutely or conditionally) to sell a proposed allotment or a proposed lot shall be taken to have entered upon a sale of the allotment or lot and in this Act is referred to as 'the vendor'. (2) Subsection (1)(b) shall not be construed to limit the meaning of the expression 'sell' as defined in section 6...." The issue [12] In this case the purchaser signed the contract before it was executed by the vendor. The primary judge accepted the respondent's contention that, in terms of s 19(7), "the event that marks the entry of a purchaser upon the purchase" was execution by the vendor. 4 The appellant repeated in the appeal the contrary contention, rejected by the primary judge, that the relevant "event" was the signing of the contract by the purchaser. [13] This construction issue is determinative of the question whether the application for exemption was made in time because the application was made more than 30 days after the purchaser signed the contract but less than 30 days after the vendor executed it. There is no challenge to the findings of the primary judge that the purchaser signed the contract before 24 June 2002 (by which date the signed contract, dated 30 May 2006, had been given to the vendor), the vendor executed the contract on 24 September 2002, and the respondent made the application for exemption no earlier than 18 October 2002. 5 [14] On behalf of the appellant it was submitted that the phrase in s 19(7) "the event that marks the entry of a purchaser upon the purchase" takes it meaning from s 6A(1)(a); that s 6A(1)(a) comprehends the event of an intending purchaser signing a form of contract; and that it followed that s 19(7) required the exemption application to be made within 30 days after the purchaser signed the contract. [15] The respondent contended that the form of contract signed only by the purchaser was merely an offer, so that it was not "intended to bind" the prospective purchaser to purchase in terms of s 6A(1)(a). The "event" described in s 19(7) was submitted to be the vendor's execution of the contract. 4 5 Three P/L v Body Corporate for Savoir Faire Community Title Scheme 3841 [2007] QSC 358 at [23]. Three P/L v Body Corporate for Savoir Faire Community Title Scheme 3841 [2007] QSC 358 at [9], [12], and [13].

8 Reasons of the primary judge [16] The essence of the trial judge s reasons for finding in the respondent's favour is contained in the following passage: 6 "[21] Subsection 19(7) imposes the requirement that the application for exemption be made only 'in a case to which subsection (6) applies'. What case is that? I commence with the observation that the Act is directed at prohibiting sales, not offers to purchase. That is what s 8(1) says '[a] person may sell a proposed allotment only if ' and s 8(2) then makes any agreement contrary to s 8(1) void. Subsection 19(6) picks up the same phrase 'Notwithstanding the provisions of section 8 a person may agree to sell a proposed allotment '. Thus the legislature is concerned not with offers to purchase at this point but agreements to sell. [22] When s 19(6) then refers to 'the instrument that binds a person to purchase' the supposition is that an agreement to sell by a vendor is in place. So long as the written offer put forward by the purchaser remains unaccepted it does not bind it to purchase conditionally or otherwise. There is no reason to read the word 'binds' as referring to an instrument that might bind the purchaser in the future if a vendor eventually decides to accept the offer contained in the instrument. I can see no reason why 'binds' should not be given its ordinary meaning. [23] Thus s 19(7) in my view applies to a case where there is an agreement to sell and an instrument binding the purchaser to purchase that contains the condition there mentioned. In this case those conditions are not met until the execution of the contract by the vendor. [24] That approach seems to me to best meet the objects of the Act. Section 2(b) of the Act provides that one object of the Act is to 'protect the interests of consumers in relation to property development'. Here the consumer is the purchaser. It makes sense that the purchaser comes under an obligation to make application for exemption promptly if he or she wishes to preserve the contract - only when there is a commitment from the vendor to the contract. [25] Allied with that point is that the interpretation the applicant advances is commercially unrealistic. On that interpretation a purchaser must obtain the consent of the vendor to make an application (s 19(1A)) and then make it within 30 days of execution of the offer even though the vendor may reserve 6 Three P/L v Body Corporate for Savoir Faire Community Title Scheme 3841 [2007] QSC 358 at [21]-[26].

9 Discussion its position as to acceptance or otherwise of the offer. It seems odd that the Act would require a person having no present entitlement to the subject property, and perhaps never having any entitlement to the property, to take steps to exempt that property from the Act, steps that involve some cost, albeit modest, and that might well advantage the vendor. [26] Absent those steps the offer must cease to have any force after 30 days and it would then be necessary for the purchaser to redraw and resubmit the offer. It seems odd that provisions designed to enhance the protection of consumers subjects them to such a regime. I cannot see this in any way advances the interests of consumers of proposed lots." [17] It was submitted on behalf of the appellant that his Honour erred by failing to apply the terms of s 6A(1)(a) and that his Honour s decision was contrary to Wilson J s decision in Wan v NPD Property Development Pty Ltd 7. [18] Wan v NPD Property Development Pty Ltd is not inconsistent with the primary judge's decision. Wilson J s conclusion that a person "enters upon a purchase" when the person signs the contract 8 signalled only her Honour's rejection of the submission that the expression instead referred to the date of fulfilment of conditions expressed in the executed contract. 9 That her Honour was not concerned to distinguish between the date of the written offer by the purchaser and the date upon which the contract was concluded appears clearly enough from her Honour's conclusion that the contract was void because the application for exemption had not been made "within 30 days of the date of the contract". 10 The point in issue here did not arise for decision. [19] Similarly, and for much the same reason, the issue did not arise for decision and it was not decided in the cases to which Wilson J referred, Re Rosemac Pty Ltd s Caveat [1994] 1 Qd R 137 and Francis v NPD Property Development Pty Ltd [2004] QSC 202. There appears to be no direct authority on the issue. The meaning of s 6A(1)(a) [20] The impression which s 6A(1)(a) conveys is that it was framed with reference to the method by which contracts for the sale of land are commonly concluded in Queensland, namely in one document executed by or on behalf of the vendor and the purchaser. For a long time it has been common practice in Queensland for the prospective purchaser to execute the form of contract first and provide the executed contract (sometimes in duplicate) to the vendor or its agent. The vendor then executes the same form of contract and returns it or a duplicate or copy of it to the 7 8 9 10 Wan v NPD Property Development Pty Ltd [2005] 1 Qd R 340; [2004] QSC 232. Wan v NPD Property Development Pty Ltd [2005] 1 Qd R 340 at [22]; [2004] QSC 232. Wan v NPD Property Development Pty Ltd [2005] 1 Qd R 340 at [14]-[17]; [2004] QSC 232. Wan v NPD Property Development Pty Ltd [2005] 1 Qd R 340 at [26]; [2004] QSC 232.

10 purchaser or communicates acceptance of the purchaser s offer in some other way. 11 It is objectively unlikely that this common practice was overlooked in the drafting of s 6(2)(a) of the original Act (which, with some amendments discussed below, became s 6A(1)(a)). That provision is capable of comprehending both that practice and the less common case in which the vendor executes the contract first. [21] In that context, the reference in the provision to the purchaser signing the instrument strongly suggests that entry upon the purchase occurs at that time. The text of the provision suggests only one other possibility for that event, the time when the instrument is intended to bind the prospective purchaser to purchase. It was submitted for the respondent that it was at that later time that the parties intend the instrument to bind the purchaser within the meaning of s 6A(1)(a). [22] For the respondent it was submitted that the execution of the contract form only by the purchaser has no legal effect. When a prospective purchaser has signed a form of contract, delivering of it to a prospective vendor amounts to no more than an offer to purchase on the terms of that form. Other than in an exceptional case (such as an offer made irrevocable for consideration), an offer to purchase may be withdrawn or revoked at any time before acceptance of the offer is communicated by the vendor to the purchaser. The vendor s acceptance and communication of that acceptance was required before a binding contract would be formed. [23] So much may be accepted, but an offer is nevertheless a juristic act in the sense that it has an effect upon each party s legal position vis-à-vis the other. 12 In my view, it is appropriate to describe a form of contract signed by a prospective purchaser with the intention that it be delivered to the vendor as an offer to purchase, or as an acceptance of the vendor s prior offer, as an "instrument". 13 Although s 6A(1)(a) is ambiguous, the natural meaning of it strikes me as being that the status of a person as a purchaser who has entered upon a purchase is acquired at that time. [24] That impression is conveyed by the conjunction of the word "signs" (which I would construe as including executes ), with the phrase "is intended" and "shall be taken". In that context, the phrase is intended to bind refers to the prospective purchaser s intention that the instrument executed by the purchaser will bind it to purchase if and when a contract is concluded. Context and purpose [25] There are a number of contextual matters that point in the same direction. [26] Sections 8 and 19 refer both to a sale and to a purchaser entering upon a purchase. The implication is that these are different events. The references in the Act to the event of a purchaser entering upon a purchase would be unnecessary if that event occurred only when there was a concluded contract for the purchase, for such a contract would amount both to a purchase and to a sale within the meaning of paragraph (a) of the definitions of those terms. To construe s 6A(1)(a) as referring only to the formation of a binding contract would contravene the canon of 11 12 13 Rymark Australia Development Consultants Pty Ltd v Draper [1977] Qd R 336 at 342-344; Duncan and Weld, The Standard Land Contract in Queensland, 4 th Ed (1996), pp 69-70. IVI Pty Ltd v Baycrown Pty Ltd [2005] QCA 205 at [39]. See Noble v The Public Trustee of Queensland [1994] 1 Qd R 402 at 405 406.

11 construction that requires a court to strive to give meaning to every word in the statute. 14 [27] Various provisions in the Act operate with reference to the time when the purchaser enters upon a purchase. 15 Two provisions are of particular importance in determining the intended effect of that expression. Section 9 requires the vendor to give to the purchaser a disclosure plan and disclosure statement (which must give descriptions of the proposed allotment) before the purchaser "enters upon a purchase". Subsection 11(1) provides that where there is an instrument, that is intended to bind a person (absolutely or conditionally) to purchase a proposed allotment (the words used in s 6A(1)(a) to describe when a purchaser has entered upon a purchase ) then deposits and other pre-payments of the price must be paid to the Public Trustee unless the parties to the instrument agree that such moneys shall be paid directly to a law practice in Queensland or a licensed real estate agent. [28] The relevant provisions should be given the construction that best achieves the Act s purpose. 16 In the common case where the purchaser executes the contract form first, the apparent purpose of the sections I have mentioned would be promoted by giving s 6A(1)(a) what I have described as its natural meaning. If s 9 were construed as referring instead to the time of entry into the contract, the vendor would control how much time was allowed to the purchaser to consider the prescribed disclosures. The vendor might, for example, deliver the documents moments before communicating its acceptance of the purchaser s prior offer, thereby depriving the purchaser of a reasonable time to decide whether or not to withdraw its offer after considering the information in those documents. That result was plainly not intended. [29] The primary judge observed that construing "enters upon a purchase" in s 9 as comprehending an unaccepted offer may produce the result that a vendor contravenes that section and is liable to pay a pecuniary penalty even if a purchaser makes an unsolicited offer to buy the land. 17 I respectfully prefer the alternative view that s 9 would have no application in such a case. The section imposes the obligation on "the vendor. More specifically, s 9(4) provides: "(4) The obligation prescribed by subsection (1) or (3) rests upon the vendor's agent, where it is the agent who procures the signing of the instrument concerned by the purchaser or by the purchaser's agent, and otherwise rests upon the prospective vendor." [30] In the case of an unsolicited and unaccepted offer to purchase s 9 is open to the construction that there is no person appropriately described either as a "vendor" (as defined in s 6A(1)(b)) or as a "prospective vendor". This understanding of the section is consistent with what otherwise would be the operation of s 23 of the Criminal Code in precluding any contravention where an unaccepted offer was 14 15 16 17 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]; [1998] HCA 28. See sections 8(1), 9(1), 10A(1), 10A(3), 11, 19 and 21(1). Acts Interpretation Act 1954 (Qld), s 14A. Three P/L v Body Corporate for Savoir Faire Community Title Scheme 3841 [2007] QSC 358 at [27].

12 made independently of the will of the person merely named in the contract form as vendor. [31] As to s 11(1), where a purchaser pays a deposit at the time of executing the contract and before execution by the vendor this subsection would best promote security of the deposit from the time it is paid if the subsection applies at the time of execution by the purchaser. Ensuring that deposits were protected before a purchaser's offer was accepted seems to have been one of the main purposes of the Act. The Act replaced the similar but narrower provisions in s 67 and s 67A of the Auctioneers and Agents Act 1971 (Qld). In the second reading speech, the Minister identified one of the mischiefs the Act was intended to address: "Additionally, where anyone sells land that is subdivided into five allotments or fewer the Act does not make provision for deposits received in respect of those sales to be held in trust accounts. Purchasers are insufficiently protected in such instances. Not surprisingly, there is considerable demand by purchasers to be permitted to enter into contracts at the earliest possible time. To avoid the operation of the section, potential purchasers are prepared to submit to developers so-called offers to purchase or letters of intent on the understanding that, when the developer is permitted to sell allotments, the purchasers will enter into firm contracts. To show their good faith, purchasers are prepared to tender sums of money which, in any other circumstances, would be called a deposit." [emphasis added] [32] When the Land Sales Act 1984 (Qld) commenced on 1 July 1985 it prohibited the sale and purchase of freehold land unless the plan of subdivision had been approved by the local authority "before the event that marks the entry of a person upon the purchase". 18 The only significant difference between the original definition of that expression (which was then in s 6(2)(a)) and the definition in the version of the Act relevant in this case is that the original definition included the following clause after the words "the purchaser": ", and the person who is entitled to enforce obligations under the instrument against him shall be taken to be the vendor of the land or lot in relation to that person and in this Act is referred to as 'his vendor'." [33] The second reading speech quoted above is admissible support for the view that this expanded form of the provision was intended to treat offers to purchase as constituting "entry into a purchase" for the purposes of the Act. 19 [34] That definition remained in the Act, with inconsequential amendments, until the commencement of the Land Sales and Land Title Amendment Act 1997 (Qld). The purpose of that Act was to reduce the restrictions on the sale of allotments prior to the approval of the plan of subdivision and correspondingly to strengthen provisions aimed at ensuring that the land was accurately described to the purchaser. Many 18 19 Land Sales Act 1984 (Qld), s 8(1)(a). Acts Interpretation Act 1954 (Qld), s 14B(1)(a).

13 provisions (including s 8) were amended to give effect to that policy. Relevantly to the issue in this appeal, the definition in s 6(2)(a) was amended by the omission of the concluding part of the definition. [35] There is no reason to think that the omission of that part of the definition was intended to alter the meaning of the definition at all, much less to confine it to the case where the purchaser was immediately and unconditionally bound by its execution of the instrument as a contract. The omission is instead explicable by the fact that these words had become otiose. The term "the purchaser's vendor" (which had replaced the term "his vendor") had earlier ceased to be used in any operative provision in the Act. 20 [36] The new forms of s 8(1), s 9(1) and s 10A(1) introduced by the 1997 amendment Act each contained the relevant phrase ("the purchaser enters upon the purchase of the allotment..."). There is no reference to the effect of that phrase in the Explanatory Notes for the Bill for that Act. Reference was made to the new forms of s 9(1) and s 10A(1), which the Explanatory Notes described as applying upon "entering into the contract". 21 That does support the construction propounded by the respondent, but it was evidently a shorthand description. No reference was made to the expression entering upon a purchase or its derivatives. I have concluded that this extrinsic evidence does not justify the view that any change was intended to be made to the meaning of that expression. Section 19 [37] The question in this appeal is whether the very similar expression in s 19(7) bears the meaning I attribute to s 6A(1)(a), namely that it comprehends the execution by a prospective purchaser of a form of contract with the intention that it be communicated to the prospective vendor as an offer to purchase. The expression is not a term of art. It is to be expected that the deeming provision in s 6A(1)(a) will take effect throughout the Act where there is no contrary indication. In my respectful opinion, the context and subject matter of s 19(7) do not indicate or require that the definition and deeming provision in s 6A(1)(a) should not be applied. 22 [38] The better view is that s 19(6) says nothing about the timing of an application for exemption. That topic is regulated by s 19(7). As I earlier indicated, the fact that those subsections use the different expression sell and entry upon a purchase itself suggests that they refer to different events. Subsections 19(6) and (7) reflect a similar dichotomy in s 8. On the one hand, s 19(6) permits a sale (which includes a binding contract) that otherwise would be prohibited by s 8(1) if the contract contains the necessary condition. On the other hand, the prohibition in s 8(1) operates unless a prescribed state of affairs exists at the time of a different event (the purchaser entering upon the purchase), and s 19(7) requires the application for exemption to be made within a period calculated with reference to that event. 20 21 22 The form of the Act immediately before the amendments made by the 1997 Act may be seen in Reprint No 2A, which included amendments up to Act No 56 of 1996. Explanatory Note p. 6 (referring to clause 11 of the Bill) and p. 8 (referring to clause 12). Cf Acts Interpretation Act 1954 (Qld), s 32, s 32A, s 32AA

14 [39] Some prospective vendors are entitled to apply for exemption (under s 19(1)(a)) even before the purchaser executes the contract and time starts to run under s 19(7). All prospective vendors should be in a position to ensure that there is only a short gap between signature by the purchaser and when the contract is concluded after the prospective vendor executes the contract. At that point all prospective vendors will inevitably have become "vendors" as defined in s 6 and entitled to apply for exemption under s 19(1)(b). So far as applications for exemption by vendors are concerned no difficulties are created by treating an offer to purchase as setting time running. [40] The primary judge expressed a concern (in paragraphs [24] [26] of his Honour s reasons, quoted earlier) about the commercial consequences of this construction where it is contemplated that the purchaser will apply for the exemption. The case postulated by his Honour seems likely to be exceptional: a vendor s interest in making a valid contract to sell its land would usually favour it facilitating any necessary application for exemption by a purchaser who is prepared to contract on terms acceptable to the vendor. [41] A prospective purchaser is entitled to limit the period during which its offer remains open. Even where there is no such limitation, a prospective vendor who delays acceptance might risk the offer being withdrawn or expiring by the effluxion of a reasonable time. The purchaser could instead keep the offer open and take the risk that it will lose any money it spends on an application before it is known whether or not the offer will be accepted, but that the purchaser might be faced with some such choice does not point to any flaw in this construction of the Act, in my respectful opinion. Such an application looks to be inexpensive in the context of a subdivision: the primary judge referred to a fee of $32.40. 23 [42] I should mention in this context that a possible view of s 19(1A) is that a purchaser may apply for exemption only after a binding contract of sale has been made. An application for exemption can only be made by a purchaser of a proposed allotment with the vendor's consent: s 19(1A). Where the contract is to be made by an instrument and there is both a "vendor" and a "purchaser" as those terms are defined there must be a binding contract between them. If s 19(1A) uses those terms in the sense in which they are defined, it follows that a purchaser would have no opportunity to comply with the time limit in s 19(7) if the vendor delayed for 30 days or more in accepting the purchaser s offer. For the reasons I have given though this possible difficulty is easily avoided and it does not seem particularly significant in any event. The effect of the definition of "purchaser" [43] I have so far considered the application of the Act to a contract of the character made between the appellant and the respondent, that is to say, a contract contained in one instrument. As I mentioned earlier, the impression given by s 6A(1)(a) is that a purchaser enters upon the purchase and becomes a purchaser if the purchaser ultimately becomes bound to purchase by one instrument signed by the purchaser. If, however, that were the only case in which s 6A(1)(a) applied then the 23 Three P/L v Body Corporate for Savoir Faire Community Title Scheme 3841 [2007] QSC 358 at footnote 8.

15 broader expressions in paragraphs (a), (b), (c) and (e) of the definition of "purchase", and the definition of "agreement" as including oral agreements, might be rendered otiose. The definition of purchase was presumably expressed very broadly so that the Act would cover a very wide range of arrangements. It might be thought that a purchaser would include any person who made a purchase as defined, including by an oral agreement. It is notably in that respect that the very broad definition of agreement seems to have been inserted in the Act to ensure that the absence of writing does not permit evasion of the Act. 24 [44] The view is therefore open that s 6A(1)(a) should not be construed as a comprehensive definition either of purchaser or of entered upon a purchase but rather as a provision that extends the meanings of those terms by deeming a person to have entered upon a purchase and to have become a purchaser in the particular case described in it. This view supports the construction of s 6A(1)(a) that I prefer. [45] Other approaches to the reconciliation of these definitions are also arguable. It was submitted that paragraph (e) of the definition of purchase comprehends the making of an offer to purchase and that an implication arises from s 6A(2) that the definition of purchaser in s 6A(1)(a) narrows the meaning it otherwise might have derived from the definition of purchase. I doubt that either proposition should be accepted, but even if both were accepted I would not regard that as justifying rejection of what, in my opinion, is the natural construction of s 6A(1)(a). No necessary inconsistency is created by construing each of paragraph (e) of the definition of "purchase" and s 6A(1)(a) as comprehending an offer to purchase. [46] It is not necessary in this appeal to attempt a complete reconciliation of these various definitions. In my opinion, whatever view is taken in that respect, the phrase in s 19(7) "the entry of a purchaser upon the purchase" includes the event of a prospective purchaser executing a form of contract with the intention that it be delivered to the prospective vendor as an offer to purchase. Conclusion and orders [47] For the reasons I have given, in my opinion s 19(7) required any application for exemption from the operation of s 8 to be made within 30 days after that event. As no application for exemption was made within that period the contract between the appellant and the respondent was rendered void by s 19(8) of the Land Sales Act 1984 (Qld). [48] The respondent did not contend that, if that construction of s 19(7) were adopted, the respondent had any real prospect of success in its proceeding against the appellant. Nor did the respondent contend that there was any other reason why summary judgment should not be entered against it in this event. [49] I would allow the appeal and set aside the judgment of 6 December 2007. In lieu thereof I would order that judgment be entered in favour of the defendant against 24 Act No 82 of 1993 inserted the definition of agreement after it was decided in Levy v Indooroopilly Golf Club [1990] 1 Qd R 317 that oral agreements were not caught by s 8 where there was no instrument evidencing the agreement, although consequential amendments were not made to the references to instrument in s 6A and other provisions.

16 the plaintiff on its claim, that it be declared that the contract described in the plaintiff s claim was rendered void by s 19(8) of the Land Sales Act 1984 (Qld), and that the plaintiff pay the defendant s costs of and incidental to the proceedings, including the defendant s application for summary judgment, to be assessed. I would order that the respondent pay the appellant s costs of the appeal to be assessed. [50] MACKENZIE AJA: I agree with the reasons for judgment of Fraser JA and with the orders proposed by him.