Before last week I felt just a little – in relation to the already considerable volume of law on PAMDA’s application to options – like the U.S. patent office commissioner who is reputed to have declared in 1900 that “mankind has already achieved all of which it is capable”.

But just like Henry J. Ellsworth, I have been proven wrong: there has been yet more Queensland law* on this subject.

The hydra-headed PAMDA monster revealed its hideous form most recently in connection with a 2008 option agreement relating to a two lot parcel fronting the Nerang River on the Gold Coast.

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The grantee sought to recover a $250,000 deposit paid under the option on the grounds that no attempt had been made on the formation of the option, to comply with PAMDA.

The grantor defended – asserting that PAMDA did not apply as the parcel consisted of two lots – and therefore did not meet the s 17(1) definition of “residential property” requiring a “single parcel of land on which a place of residence is constructed or being constructed”.

Acknowledging the Court of Appeal’s overruling in Vale of her decision in Cheree-Ann that mandates PAMDA’s application even to marketer’s options – except where more than one residential parcel is contracted for – Justice Mullins decided that these facts did not meet the requirements to fit within that universal exception.

The existence of two separate lots did not, in these circumstances, detract from the property comprising one “parcel” as provided for in s 17 (1). That the improvements – a residence, swimming pool, tennis court and associated appurtenances – were built over the two lots and that the lots were contained on one title, were material.

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Thus the PAMDA process should have been followed but because s 365 had not been complied with, the grantee was entitled to rescind the agreement and demand the return of all monies paid.

 


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