In what may be the final chapter of the “Tales of Tennyson Reach”, disappointed luxury apartment buyer and erstwhile villain Maris Dunworth – whose court testimony was branded in December as “unreliable” – yesterday enjoyed a magnificent victory when the court of appeal validated her second attempt to escape from her $2.155 million 2007 purchase.

Dunworth’s first crack at dumping the contract – because the as-constructed floor level was too close to ground – went badly with the Supreme Court in December compelling completion and setting February 8 as the date to pay the purchase price and interest of $500,000.

Then came the great deluge and the January 13 Brisbane River flood which carried 600mm of muddy water and debris through the luxury dwelling.

The buyer promptly rescinded (again) this time relying on Property Law Act s 64 which entitles termination before the earlier of the date of possession or settlement, if a residential property under contract has been rendered “substantially unfit for occupation”.

Mirvac were unable to restore the apartment to its antedeluvian state by the due date and called for a settlement extension until June to do so.

The buyer sought an urgent court order upholding her termination but in what should have been a very simple hearing based on the straight-forward but rarely employed PLA provision, Mirvac successfully argued that the rescission issue could not be decided on the spot and must be sent for (another) trial.

Our protagonist appealed, contending there was just no dodging the fact that the ill wind – in the form of floodwaters – that had blown others so much harm, had indeed blustered Mirvac from the water and had carried to her some very good fortune.

The court of appeal agreed, holding that the statutory right of termination persists up to the actual date of completion or possession. Thus the buyer had validly terminated the contract. Dunworth has gained her redemption – she is out and well out.

Our hero’s case was aided by Mirvac conceding on appeal that the apartment had in fact been damaged so as to be unfit for occupation: the very issue upon which Mirvac had wanted to call evidence and the reason the matter had been withheld from decision in February.

The December order also required Dunworth pay Mirvac $500,000 interest and its legals in a similar amount. The costs order will stand but the effect of escaping the contract is that the interest bill is wiped. Mirvac must now pay her costs of the February hearing and the recent appeal.

If abounding rumours hold water, a further chapter to this story may follow:  Mirvac will try to appeal the decision in the High Court of Australia. The first step in that course will be to seek that court’s leave to appeal – something that is by no means assured.

Let’s hope we must not endure yet more of this tawdry tale. A refusal of leave will not be a bad thing. Not a whole new chapter for one thing – a mere epilogue will be enough.

The apartment will surely find a new buyer – albeit at a different price – and Mirvac no doubt has other fish to fry –  and worms to catch.

Dunworth v Mirvac Qld Pty Ltd [2011] QCA 200 Chief Justice, McMurdo and Dalton JJ 19/08/2011


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