A further chapter of the ‘Tales of Tennyson Reach’ was published in December, when the Supreme Court ruled on yet another buyer’s termination of an off-the-plan contract signed at the height of the real estate market in June 2007.

As in the Holland and Tyan cases decided in September, the evidence of the developer’s staff – who could not remember the events and had to rely in the witness box on their usual practice – was preferred to the specific recollections of the $2.155 million ground floor apartment buyer, Mrs Dunworth and her husband.

The Dunworths had picked out an apartment they were interested in from promotional material sent to them and had paid $5,000 for the right to a pre-release site inspection.

They were especially concerned about privacy and security but – unlike previous cases we have seen – were content with the filtered views to the Brisbane River through the mangrove canopy.

Their disappointment and distress resulted from the elevation of the as-constructed apartment which – at 1.2 m above ground level at its lowest point – was far below the 3 m plus they had expected.

In what would have been equally distressing for them, the court ruled that the couple’s account that they were specifically told the apartment would be at least 3 m above ground level, was “unreliable” and did not meet the requisite precision needed to make out Trade Practices Act allegations of misleading & deceptive conduct and misrepresentation.

The couple had also been escorted to and climbed a viewing tower the first level of which was “about 11ft” above the ground level at that point. But the ground undulated and the viewing tower was not situated at the proposed apartment’s location (but rather, between two of the proposed buildings).

The buyer was, therefore, not entitled to conclude that the 11ft elevation would also apply uniformly where her apartment was to be built.

After much consideration and discussion with her husband and in the absence of the elevation plan which was requested but could not be produced, Mrs Dunworth signed the contract that morning in the sales office in a “frenetic” atmosphere “with people anxious to secure apartments before they were released to the public”.

Likewise, Mirvac defeated an allegation that it had represented the crown land to the east (that the apartment overlooked on one side), would “remain as bushland”. As before, alignment of staffs’ accounts of their general practice, with what was contained in the sales manual, assisted the court finding in the developer’s favour.

Several Tennyson Reach disputes have already been finalised in the courts, mostly in favour of Mirvac. Many other court claims have already been withdrawn or settled. There are several more to come.

Of discouragement to other litigants will be the ruling made on the further point taken, as to the manner in which Mirvac dealt with objections from the Registrar of Titles to easements in favour of the body corporate that did not fit the description of those allowed under BCCM section 44.

Rather than amend the allocation and plotting of easements as proposed by the Registrar, Mirvac’s solicitors made numerous handwritten amendments to the CMS to re-reference the neighbouring parcel servient tenement.

The court held that this was not something to which the planning authority could have objected to in the required “endorsement” and “notation” process under BCCM section 60(3) and thus it could not be said that there was any issue as to the validity of the resulting community management scheme.

Agents should not conclude that their version of events will henceforth always be preferred to that of litigious buyers. But much can be learned by the industry, from this line of cases as to the standards of behavior that will in similar disputes, withstand challenge.

Developers will also hopefully learn from this tale that they should have basic documentation such as elevation plans, available to potential off-the-plan buyers in similar situations.

Dunworth v Mirvac Queensland Pty Limited [2010] QSC 472


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