In April 2007 a buyer walked into a real estate office to make an offer on a Q1 Penthouse at Surfers Paradise for $8.5million.
Contract documents, including special conditions specified by the buyer, were prepared on the basis that he would waive the cooling off period and would obtain the necessary solicitor’s certificate within a day or two. The agent took him through the documents and directed his attention to the form 30C warning statement, the information sheet and the BCCM disclosure statement. He then signed the warning statement before he signed the contract.
Two days later, the buyer’s solicitor sent the cooling-off waiver certificate to the agent.
Before the contract was even presented to the seller, the seller’s solicitor required some changes to the special conditions. The buyer agreed to and initialled the changes. Later that day the seller signed the contract and it was returned to the buyer.
No new form 30C warning statement had been prepared for the buyer to sign before he initialed the changes to the special conditions. Neither was the buyer asked to re-sign the original warning statement. It was accepted however that the agent drew the buyer’s attention (again) to the warning statement.
The very next day the buyer purported to crash the contract on the basis that PAMDA s366B had not been complied with because he did not re-sign the form 30C warning statement when he was initialling the contract changes.
In June – more than 3 years later – the Supreme Court* ruled that the buyer’s termination was invalid. Unlike a counter-offer situation, the contract at the time of initialling of the changes to the special conditions was to be regarded as the same contract signed at inception: no new s366B requirement to sign the warning statement arose.
The changes to the contract had, in this case, been made by the buyer before presentation to the seller. A prospective purchaser is not, said the court, “required to sign a new warning statement or re-sign the original warning statement on each occasion that the purchaser makes any changes to a proposed contract before it is submitted to the vendor”.
Had the seller made the contract changes and returned it as a counter-offer, the situation would be different. The form 30C warning statement must be re-signed (or a new one prepared and signed) at the time a buyer submits a response to a seller’s counter-offer. In such a case the second offer is regarded as a different contract altogether: Rice v Ray [2009] QDC 275 (see September 2009 eNews).
* Fletcher v Kakemoto [2010] QSC 219
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