A Buyer of two "off the plan" vacant land
lots was recently ordered by the Queensland Supreme
Court1 to complete the contracts, despite the
Buyer's allegation that the disclosure plans provided by
the Seller failed to comply with the Land Sales Act 1984
In March 2008, the Buyer contracted to purchase two proposed
industrial lots "off the plan".
Title to the lots issued in December 2008 and the Seller called
for settlement in accordance with the contracts.
The Buyer refused to settle, claiming that the disclosure plans
did not comply with the requirements of the Act. Allegedly, the
disclosure plans failed to set out the contour levels, which are
required under the Act.
The Act requires disclosure plans to include a contour map of
proposed allotments that show:
natural surface contours, with appropriate contour intervals;
final surface contours specified in the engineering
In this instance, the Buyer alleged the disclosure plans did not
set out the natural surface contours of the lots.
The Seller argued that at the time of signing the contracts all
of the earthworks had been completed and the disclosure plans set
out the natural contours of the lots existing as of the date of
contract. The disclosure plans, therefore, did satisfy the
requirements of the Act.
The Court held the actual contour levels of the lots as of the
date of contract were not relevant. For the purposes of the Act,
the Court interpreted the "natural surface
contours" to mean the contours of the lots in their
"undisturbed state". In other words, disclosure
plan must show the contours existing prior to human
In this case, it was shown that the contour plans and maps
showing the natural surface contours of the lots were held by the
local Council and were available to the parties.
After some technical examination of the disclosure plans, the
Court was satisfied that the Seller's disclosure plans did
sufficiently disclose natural surface contours with appropriate
The consequences of non-compliance with the Act can be fatal to
a land sale contract.
This decision turned on a fine technical argument concerning the
contour levels set out in the disclosure plan. The Court easily
have had concluded that the disclosure plans did not satisfy the
Act, allowing the Buyer to lawfully avoid settlement with a refund
of all deposit money paid.
It is vital for developers and surveyors to ensure that the
disclosure plans comply with the Act when preparing contracts for
the "off the plan" sale of proposed allotments of land.
In particular, surveyors engaged to prepare disclosure plans should
confirm that their plans comply with the Act and, in particular,
with the requirements of section 9(2) of the Act to show the
natural surface contours of the land.
The State Government is currently reviewing the Act. We will
keep you posted as the law changes.
1 Treton Pty Ltd v HM Australia Holdings Pty
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