The Property Agents and Motor Dealers Act (PAMDA) specifies that the form 30c warning statement must be attached to the contract as its first or top sheet. At what point in the negotiations must this happen? Is the specified order required to be observed at all times?
These questions have now been answered by no less authority than the Qld Court of Appeal.
In the case, a purchaser had signed a standard REIQ 5th edition House and Land contract in September offering to buy the seller’s Sunshine Coast home for $1.3 million.
The seller signed the contract with no alterations. The deposit was paid and settlement was due in the following June. Before settlement, the purchaser purported to terminate the contract because (according to the letter from the purchaser’s solicitors) “…the contract that we have in our possession does not have the PAMDA form 30c attached as its first sheet but instead has the form 27b. The contract is still stapled and in the condition as it was when provided by the agent to the purchaser for execution.”
The real estate agent had presented the contract to the buyer with the form 30c on top and attached to the bundle of other documents all in the correct order. The buyer had read the warning statement and signed the acknowledgement before signing the contract.
It is not clear in what order the documents were when they were signed by the seller but it is clear that the signed originals and copies were distributed by the agent without the form 30c being on top. The top document was the form 27b, then the form 30c, followed by the contract.
The court concluded that as long as the contract is presented to the buyer in the correct order, a change in their order while the seller is signing is not necessarily fatal.
The court found that the word “contract” in s366 must be read as “proposed contract”.
It is important to note however that s 365 imposes similar requirements in respect of the order of documents and the drawing of the buyer’s attention to the warning statement when returning the fully signed contract to the buyer after it has been signed by the seller.