Sunshine Coast hinterland: Land buyers take developers to court over sunset clause

Buyers fighting to have their Sunshine Coast hinterland land contracts reinstated are refusing to back down in an ongoing court dispute. Read why here:

Aspiring homeowners are refusing to back down in a dispute against a developer as they fight to have Sunshine Coast hinterland land contracts reinstated.

A group of four buyers including sisters Lisa and Alex Parfitt and first homebuyer Ellyn Alexandra Evans is involved in separate court proceedings against Burrell Ave Developments Pty Ltd.

Following an initial hearing in the Supreme Court of Queensland, they are now seeking to take the matter to the District Court.

The Parfitts’ dispute was put forward as a test case in the Queensland Supreme Court in an attempt to sue Burrell Avenue Development for suspending a land contract under the sunset clause.

According to court documents, the Parfitts signed a contract for a block of land in the Eumundi subdivision for $275,000 in September 2018.

Elle Evans pictured with partner Jackson Mason is suing developer Burrell Developments after the company invoked the sunset clause to terminate her Eumundi land contract.

The land was yet to be registered and was subject to approval for a subdivision.

The plan was not registered by March 20, 2020 – the sunset clause date – however, it was not for another 16 months when Burrell Avenue Development through its solicitor terminated the contract under the clause.

The use of sunset clauses to terminate contracts is not prohibited under Queensland law.

It allows buyers and sellers to terminate a contract if land has not been registered by a certain date.

The Parfitts claim the value of the land had “significantly increased” to $500,000 when the sunset clause was invoked in July, 2021.

Similar clauses have been used to terminate contracts at unrelated developments on the Gold Coast, Brisbane, and other parts of the Sunshine Coast, including at Nambour.

Klein Legal director Madeline Klein is representing the buyers in what she said were very similar circumstances.

The Parfitts claimed the termination was “invalid and ineffective” and sought for the court to reinstate the contract.

The developer claimed the right to terminate under the sunset clause was a continuing right and could happen at any time after March 20, 2020.

It claimed everyone involved was aware the development “was going through all sorts of difficulties going through council”, according to court documents.

Supreme Court of Queensland Judge Helen Bowskill dismissed the application for a summary judgment to have the contracts reinstated.

Justice Bowskill said she was not convinced that the defendants would not be able to defend the claim at trial.

She said the matter could go to trial in the District Court.

“(The Parfitts) submit that the delay of 16 months, with the growth in the property market which occurred during that time, has caused prejudice … because they stayed out of the market, waiting with the expectation of becoming the owners of the block of land they had contracted with the defendant to purchase,” Judge Bowskill said.

“While I consider there is force to (Lisa and Alex Parfitt’s) argument, in terms of the lengthy delay until the purported exercise of the right to terminate, on careful reflection I am not persuaded, having regard to the high degree of caution required, that the defendant has no reasonable prospects of successfully defending the claim for performance of the contract.

“Nor am I persuaded that there is no need for a trial.

“It may be that, upon a trial of the issues in the proceeding, the conclusion is reached that an election had been made, or that the defendant is estopped from exercising the right to terminate.”

Ms Klein said they would seek to have each of the buyers’ disputes taken to the District Court.

Attempts were made to contact the developer however they could not be reached.

They had declined to comment on previous articles.

Originally published as Sunshine Coast hinterland: Land buyers take developers to court over sunset clause