On 26 February 2010 the Supreme Court of Queensland handed down
a decision which illustrates the importance of carefully drafting
special conditions in property contracts.
The case of Gilson v Flamingo Enterprises Pty Ltd
 QSC 53 involved a situation where Gilson agreed to buy an
off the plan unit from Flamingo Enterprises Pty Ltd.
In discussions with the selling agent before signing the
contract, Gilson raised with the selling agent a number of queries
including whether a particular unit had "unobstructed ocean
The selling agent invited Gilson to suggest special conditions
to be included in the contract which would satisfy her queries.
The developer subsequently agreed to include the following
special condition in the contract:
The positioning of the unit must
provide unobstructed ocean views.
After construction of the unit, Gilson claimed the unit did not
have "unobstructed ocean views". She made an application
to the Supreme Court seeking orders that she was entitled to
terminate the contract on the basis of the special condition.
In interpreting the words "unobstructed ocean views"
Justice Daubney stated:
... The clear meaning of the
clause is that, when constructed, one would have "unobstructed
ocean views" from the unit. That does not necessarily mean
that one would have panoramic views of the ocean from every point
within the unit. Such an interpretation would, in my view, be quite
unreasonable. But the term "unobstructed ocean views"
means more that one would have selected aspects of the ocean,
depending on the direction in which one looks. The use of the word
"views" tends to suggest a wider range of vision than a
single aspect. Those views must be of the ocean and not merely
particular visual slices of the ocean, or the sky above the ocean
and those views of the ocean must be "unobstructed". That
word really speaks for itself.
Before deciding the case, Justice Daubney attended at the unit
complex to personally observe the views. The judge found that one
could see the ocean if one stood on the balcony and looked due
east. However, the view from north east was completely obstructed
by buildings. He found that the view from the south east quarter
was significantly obstructed by a roof of the neighbouring
apartment block, and that it provided, at best, "ocean
The judge concluded it could not be objectively stated that one
had "unobstructed ocean views" from the unit and
therefore the developer had breached the special condition.
The court also found that the special condition was an essential
term of the contract having regard to the dealings between the
parties which lead to its inclusion. This meant that Gilson was
entitled to terminate.
Property developers need to give careful consideration to
special conditions suggested by buyers before agreeing to their
inclusion into property contracts.
Cooper Grace Ward was named Joint Best Australian Law Firm in
the BRW Client Choice Awards 2009 - Revenue < $50m.
The firm has also been named as the fastest growing law firm in
Australia for 2009 by The Australian.
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