Failure to settle an off the plan contract was a costly decision

The Queensland Supreme Court recently decided a case involving an off the plan apartment contract in the Soul building at Surfers Paradise.

The case is Juniper Property Holdings No 15 P/L v Caltabiano (No 2) [2016] QSC 005 

Mr Caltabiano purchased the penthouse in Soul in July 2006 for $16.85 million, a lot of money for a 519 sqm apartment.  Mr Caltabiano failed to settle upon completion of the building in 2012.  So the developer forfeited the deposit, and sued Mr Caltabiano for damages.  The developer resold the penthouse in April 2015 for $7M.  So the claim for damages was $8.8M plus interest under the contract for failure to settle for over $3M.

Mr Caltabiano claimed that the sales agent was misleading -- it was claimed that at the request of Mr Caltabiano, the sales agent provided information in an oral discussion regarding supposedly comparable sales in Jade and Q1.  Mr Caltabiano never checked whether this information was correct.

The judge decided that the sales agent did not make the alleged misleading statements.  Even if they were made, they were not relied up by Mr Caltabiano.

77. "The defendant submits that the fact that he did not obtain external advice as to the value of the Soul penthouse or the prudence of the purchase only serves to emphasise his reliance on the alleged representations. However, in my view, it is commercially illogical and inherently improbable that in deciding upon a $16.85 million purchase the defendant would not have obtained such advice because of reliance on the alleged representations made by the plaintiff’s sales consultant comprising comparisons with properties that the defendant did not know anything about. This is where the defendant’s story is incredible." 

See http://www.sclqld.org.au/caselaw/QSC/2016/005

This shows one of the many dangers of buying off the plan.  Values may go down substantially between contract and settlement, but you still have to settle.  And if you don't, then you are in big trouble.

Sunland's Toowong Proposal - Grace

Sunland (who developed Q1 and Circle on Cavill on the Gold Coast, and who is developing Abian in  Alice Street) has released pictures showing three towers on its Toowong site.  This is the old ABC studio site.   The development is to be called Sunland's Grace.  (I would have thought that Sunland's Graceland would have been a better name.)

The three towers are a little out of place in Toowong in my opinion.

They are mostly apartments:

Tower A

• 1 Bedrooms: 20
• 2 Bedrooms: 66
• 3 Bedrooms: 40

Tower B will be the same as Tower A.

Tower C 

• 1 Bedroom - 130
• 2 Bedrooms - 104

Q1 Trademark

A recent interesting Federal Court decision in favour of Mantra, that decides that the onsite manager can own a trademark for its letting business, even if the trademark is similar to the building name.
See Mantra IP Pty Ltd v Spagnuolo [2012] FCA 769 (19 July 2012):
"Like the Chifley Tower, “Q1” was a sign devised by Sunland, a private entity, to, among other things, signify or name its private building development. When it chose the sign “Q1”, it did not adopt or incorporate a geographical name such as that of an established town, suburb or district, like Surfers Paradise, or the Gold Coast.  ... From this history, I do not consider there is any basis upon which any trader could claim to have any “common right of the public” to make honest use of the sign “Q1” as a trade mark. Put differently, there is nothing about the sign “Q1” that could be said to bring it within the “common heritage”..."

Q1 defects

See Courier Mail

THE developer of the Gold Coast's Q1 supertower is being sued over construction defects that allegedly have left the building requiring millions of dollars worth of repairs.

Only six years after its completion, the world's tallest residential building allegedly is riddled with corrosion.

Q1 Legal Decision - Purchaser Looses Large Deposit

"Losing a deposit on a property is tough, but when it's almost a million dollars a whole new world of pain can be felt." See Brisbane Times

Gold Coast Auction Update

The AFR had a headline this week: "Gold Coast results highlight weakness". There were several auction events last weekend on the Gold Coast. Some agencies had clearance rates as low as 10% according to the AFR. The Ray White Sunday auction sold $12.4M worth of property, 41 sales from 103 listings, with an average sales price of $312,000.

A Circle on Cavill penthouse sold for $2.5M, originally sold off the plan for $5.95M. The Gold Coast press calls this a positive sign! How is making a loss of almost $4M a positive sign?

A large Q1 apartment, 3104, sold for $575,000 furnished, less than the mid $600Ks paid for this apartment unfurnished by the previous owner. See photo above.

Two Soul apartments (still off the plan) failed to attract bidders.

The Gold Coast press says that things are looking up! Can anyone explain to me why a large capital loss is a good thing?

Gold Coast Auctions

It has been reported that settlements for the $700 million Oracle Broadbeach apartment project on the Gold Coast are likely to be delayed by the Queensland floods.

This is because Brisbane lawyers working on the contracts are unable to return to their flooded city offices, according to the receiver for the project. ... Since October, about 180 of those presales had settled after values of Gold Coast apartments typically fell by 30 per cent since the global financial crisis.

Source: The Australian

It will be interesting to see the auction results for these apartments:

• Q1, Apt 5307
• Soul, Apt 3805
• Soul, 2805
• Circle On Cavill, Penthouse

Some of the Oracle apartments for sale:

• Apt 2405, $2.4M (or over $9K a sqm, which is outrageous!)
• Apt 2605, 2 bedrooms, $1.5M (note the 2006 off-the-plan price for this apartment was $1,320,000)
• Apt 1404, $795,000
• Apt 1505, $680,000
• Apt 1907, 2 bedrooms
• Apt 3401, 3 bedrooms, $1.5M
• Apt 3801, 3 bedrooms, $2.5M (or over $13K a sqm -- the vendor is on another planet!)
• Two bedroom at rear, $1.6M
• Two bedroom, $1.3M
• Two bedroom 27th floor, tower one
• One bedroom on 6th floor, just over $600,000
• One bedroom, tower 2 $800,000
• List of resales

Note that there are two towers: Tower 1 is 50 storey's, comprising 274 luxury apartments (faces the ocean with ocean views) whilst Tower 2 is 40 Storeys, and comprises 241 apartments (faces North East (behind Tower One)).

See also RealEstate Buzz