Skyrock Sun Pty Ltd v Brades Property Agnes Water Pty Ltd & Ors [2025] QDC 143

"... Council is of the view that compliance with Special Condition 2 may potentially lead to a change in the layout of the proposed development. The amendment of the detention strategy may subsequently impact on the number and the design of lots proposed ..."; and

• [4.7] On 21 September 2022, Skyrock, through correspondence from its solicitors, terminated the Sale Agreement pursuant to Special Condition A (Termination Letter),[6] and subsequently demanded repayment of the loan.[7] The defendants have not repaid the loan.

• [5] As to the Debt Claim, Skyrock contends that:
  • [5.1] pursuant to the terms of the Side Deed, the loan became immediately repayable to Skyrock upon Skyrock's termination of the Sale Agreement on 21 September 2022;
  • [5.2] Brades Property is therefore liable to repay the loan, plus interest thereon;
  • [5.3] Brades PI and Mr Brades are jointly and severally liable to repay the loan, by reason of the guarantee and indemnity each provided in the Side Deed; and
  • [5.4] in addition to the liability for the loan:
    • [5.4.1] each of the defendants is liable to pay interest on the loan at the contractually agreed rate of 10% per annum; and
    • [5.4.2] the defendants are liable to pay Skyrock's costs on an indemnity basis, having regard to the indemnity contained in the Side Deed.
• [6] The premise of the Contract Claim is the same as the Debt Claim, except Skyrock says that the failure of the defendants to repay the loan constitutes a breach of the Sale Agreement and the Side Deed.
• [7] As to the Australian Consumer Law claim (ACL Claim), Skyrock contends that;
  • [7.1] prior to the entry into the Sale Agreement, Brades Property made certain representations through emails dated 15 June[8] and 18 June[9] sent by PRD as to:
    • [7.1.1] the property being able to be reconfigured into 15 lots;
    • [7.1.2] the cost of the proposed development; and
    • [7.1.3] the sale price of each of the lots in the proposed development;
  • [7.2] it relied upon, and was induced by, those representations to enter into the Sale Agreement and Side Deed, and to pay and authorise the release of the deposit to Brades Property;
  • [7.3] those representations were false, misleading, and deceptive in contravention of the Australian Consumer Law; and
  • [7.4] as a consequence:
    • [7.4.1] Brades Property is liable to pay damages to Skyrock, in the value of the deposit; or
    • [7.4.2] alternatively, the Sale Agreement and Side Deed are void, which in turn would compel Brades Property to repay the deposit to Skyrock.
• [8] The defendants deny liability on the basis that:
  • [8.1] As to the debt claim and the contract claim:
    • [8.1.1] the loan was only repayable if Skyrock "lawfully and validly" terminated the Sale Agreement;
    • [8.1.2] Skyrock did not have a lawful right to terminate the Sale Agreement because Skyrock had no reasonable basis to not be satisfied with the conditions of the Development Approval; and
    • [8.1.3] therefore, Skyrock's termination of the Sale Agreement was a repudiation and breach of the Sale Agreement, which entitled Brades Property to keep the deposit amount; and
  • [8.2] As to the ACL claim:
    • [8.2.1] the representations of PRD were not made by, or with the authority of, Brades Property; and
    • [8.2.2] the representations were not capable of misleading or deceiving Skyrock, or alternatively, did not arise from the statements made by PRD.
• [9] The parties agree that the issues to be determined at trial are therefore:
  • [9.1] in relation to the Debt Claim and Contract Claim:
    • [9.1.1] did Skyrock have a lawful basis to terminate the Sale Agreement pursuant to Special Condition A?; and
  • [9.2] in relation to the ACL claim:
    • [9.2.1] were the representations made by Brades Property?
    • [9.2.2] were the representations misleading?; and
    • [9.2.3] did reliance on the representations cause Skyrock loss?

• [10] To better understand the matter, the following detailed timeline is of assistance:
  • [10.1] Brades Property was the registered proprietor of the property particularised as lot 107 on Survey Plan 301507, Title Reference 51270618, situated at Beaches Village Circuit, Agnes Water, Queensland, 4677 (the property).
  • [10.2] On 11 April 2022, Brades Property made development application DA/25/2022 (development application) to the Council for approval to reconfigure the property into a 15-lot community title scheme (proposed development).
  • [10.3] At a time prior to 15 June 2022, Brades Property appointed Agnes Street Developments Pty Ltd as trustee for the White Lawry Unit Trust (PRD) as its agent for the sale of the property with authority to:
    • [10.3.1] sell the property on behalf of Brades Property;
    • [10.3.2] negotiate for the selling of the property on behalf of Brades Property; and
    • [10.3.3] market the property for sale on behalf of Brades Property in order to find a purchaser.
  • [10.4] On 15 June 2022, PRD, as agent for Brades Property, sent the 15 June email to Skyrock stating relevantly:

"I have estimated complete costs to build approx. $800,000 including power and comms and approx. $550K if I perform civil inhouse. The internal road is a one way road and the site is fairly straightforward.

I would say that pricing should start at $359K up to $399K which will bring up profits"

• [10.5] PRD sent the 15 June email in response to a request from the plaintiff to PRD, asking the first defendant to estimate the costs to construct the subdivision.
• [10.6] On 18 June 2022, PRD sent an email to Skyrock (18 June email) stating relevantly:

"I would suggest the lots will range from $375 - $425K as there are approx. eight with great sea views."

• [10.7] At the time of receiving the 15 June email and the 18 June email, Skyrock knew the development application for reconfiguration of the property into 15 lots had not yet issued.
• [10.8] The amounts set out in the 15 June email were expressly stated to represent an estimate of construction costs only.
• [10.9] Brades Property did not provide the requested quotation or breakdown of construction costs, as requested by Skyrock pursuant to an email dated 16 June 2022.
• [10.10] Skyrock knew the precise cost to complete the development could not be ascertained by it until the Development Approval and the Operational Works Approval had issued.
• [10.11] On 5 July 2022, Skyrock and Brades Property entered into an agreement for the sale and purchase of the property (Sale Agreement).
• [10.12] The material terms of the Sale Agreement were, inter alia, that:
  • [10.12.1] Brades Property would sell, and Skyrock would buy, the property for the sum of $2,200,000;
  • [10.12.2] Skyrock would pay a deposit of $220,000 (deposit) to PRD within five days of 5 July 2022;
  • [10.12.3] if approval of the Development Application was not issued by the relevant authority within 90 days of 5 July 2022, either party would be able to terminate the sale agreement and the deposit would be refunded to Skyrock (Special Condition B); and
  • [10.12.4] the Sale Agreement would be conditional upon Skyrock being satisfied that the conditions of the approval of the development application (Special Condition A):
    • [10.12.4.1] are consistent with the representations of Brades Property;
    • [10.12.4.2] are conditions typically imposed on similar developments; and
    • [10.12.4.3] do not include any provision which reduces the number of lots below 15.
• [10.13] On 8 July 2022, pursuant to the Sale Agreement, Skyrock paid the deposit to PRD.
• [10.14] On 12 August 2022, Skyrock, Brades Property, Brades PI and Mr Brades entered into a written agreement (Side Deed).
• [10.15] The material terms of the Side Deed were, inter alia, that:
  • [10.15.1] The Sale Agreement would be varied to include the following terms;
    • [10.15.1.1] Skyrock would sell each lot in the proposed development within 5% of the suggested price range of $375,000 to $425,000;
    • [10.15.1.2] In the event that Skyrock fails to settle the sale agreement, the benefit of the pre-sale contracts of lots in the Proposed Development would be assigned to Brades Property; and
    • [10.15.1.3] Brades Property would remove any spoil and overgrown vegetation from the property and generally reinstate the property such that it is clean and tidy for presentations for sale purposes.
  • [10.15.2] Upon satisfaction of Brades Property removing any spoil and overgrown vegetation from the Property and generally reinstating the Property such that it is clean and tidy for presentations for sale purposes, Skyrock and Brades Property would immediately authorise PRD to release the deposit to Brades Property on the following terms:
    • [10.15.2.1] The payment of the deposit would be a loan by Skyrock to Brades Property (loan) for a term expiring on settlement or termination of the Sale Agreement, whichever is earlier;
    • [10.15.2.2] The loan must be repaid on expiry of the term provided:
      • [10.15.2.2.1] If the expiry date coincides with settlement of the Sale Agreement or termination by Brades Property other than under Special Condition B, then repayment will be deemed to have occurred at settlement or Brades Property's termination;
      • [10.15.2.2.2] If the expiry date arises due to Brades Property's termination of the Sale Agreement under Special Condition B, then repayment to Skyrock is due immediately and, in any event, within seven days of notice of termination;
      • [10.15.2.2.3] The loan would be subject to interest at 10% per annum and reduced to nil provided the loan is repaid as provided in the Side Deed;
      • [10.15.2.2.4] The loan would be immediately repayable to Skyrock and, in any event, within seven days of termination of the Sale Agreement where the development approval is not issued or, if issued, does not satisfy the provisions of Special Condition A or Special Condition B of the Sale Agreement;
    • [10.15.2.3] Brades PI and Mr Brades would guarantee to Skyrock that Brades Property will punctually perform its obligations under the Side Deed for the due and punctual payment of all monies payable by Brades Property under the Side Deed.
• [10.16] On 19 August 2022, pursuant to the Side Deed, Skyrock and Brades Property authorised PRD to release, and PRD did release, the deposit to Brades Property.
• [10.17] On 25 August 2022, pursuant to s 64 of the Planning Act 2016 (Qld), the Council approved the development application (Development Approval). The Notice of Decision is dated 25 August 2022.
• [10.18] As at termination of the Sale Agreement on 21 September 2022, the Development Approval:
  • [10.18.1] did not approve, stamp or annex to the Development Approval the plan of the Proposed Development that accompanied the Development Application;
  • [10.18.2] was subject to the following special conditions;
    • [10.18.2.1] Prior to the lodgement of any Development Application for Operational Works, the applicant is required to submit to the Council for approval, revised plans for the subdivision, inclusive of the requested condition requirements outlined within the Development Approval (Special Condition 1);
    • [10.18.2.2] Prior to the lodgement of any Development Application for Operational Works, the applicant must submit to the Council for approval, quantification of the capacity of the rubble pit to accept to the proposed flow in accordance with the Engineering Planning Scheme Policy under the Our Place Our Plan Gladstone Regional Council Planning Scheme and be certified by a RPEQ experienced in this type of work. The detention strategy may need to be amended considering the actual available flow rate that can be achieved (Special Condition 2).
• [10.19] On 30 August 2022, Ms Min emailed a Mr Enders[10] enquiring about whether he had "the approved DA set with the Council approved stamp"[11] and asking questions in relation to Special Conditions 1 and 2.
• [10.20] Ms Min emailed a Michael Binger[12] on 1 September in exactly the same terms as her email to Mr Enders.[13]
• [10.21] Mr Binger, later that day, indicated that Pinnacle Engineering was unable to assist further.[14]
• [10.22] Mr Enders, upon receipt of Ms Min's email of 30 August, directed a Mr Schuler to make enquiries of Council regarding stamped plans.[15]
• [10.23] On 1 September 2022, Zone Planning Group Pty Ltd (Zone Planning), Town Planner for Brades Property, sent an email to the Council which stated relevantly:

With reference to the Notice of Decision recently provided by Council in relation to the above Development Application, it is noted that the conditions of the approval do not list Approved Plans. A copy of the Notice of Decision is attached to this email.

'Prior to the lodgement of any Development Application for Operational Works, the applicant is required to submit to Council for approval revised plans with the subdivision, inclusive of the requested condition requirements outlined here within.'

After reading the remaining conditions of the approval, it does not appear that there are any requirements in those conditions which would lead to the plan of subdivision which was lodged with the application having to be amended. A copy of the application plan is also attached to this email for your information.

It would be appreciated if you could please review this matter, and if you agree that there are no provisions in any of the conditions which would require the plan of subdivision to be amended, to then issue a stamped copy of the plan of subdivision as the Approved Plan for this Notice of Decision."

• [10.24] On 1 September 2022, Ms Abena Dankwa (a Planning Officer from the Customer Experience Division of Council) sent an email to Mr Binger indicating relevantly (Council Email)[16]:

"Council is of the view that compliance with special condition 2 may potentially lead to a change in the layout of the proposed development. The amendment of the detention strategy may subsequently impact on the number and design of lots proposed."

• [10.25] On 13 September 2022, Mr Binger responded to Ms Dankwa's email clarifying that the concerns regarding the stormwater issues relating to the rubble pit had already been noted and that's why the Pinnacle Engineering drawings submitted with the application noted "yet to be cleaned and confirmed functional".[17]
• [10.26] On 15 September 2022, Ms Min chased up Mr Enders regarding the outcome of enquiries made by Mr Enders with Council. Mr Enders forwarded Ms Min's email to Mr Schuler.[18]
• [10.27] Mr Schuler responded to Ms Min later that same day and relevantly advised:[19]

"... I also advise that there have been further representations made to Council by the applicant's engineer in relation to the stormwater issue. The applicant has advised that you may contact the engineer for advice regarding his discussions."

• [10.28] Between 17 September and 19 September 2022, Ms Min sent the following emails:
  • [10.28.1] to Mr Dave Weston of DRW Consulting (DRW) on 17 September 2022 requesting that he check a particular checklist of items and indicating "we need to go back to the seller on what we are not satisfied with the DA on Monday and position ourselves,"[20] and
  • [10.28.2] to Jason Cheers of DRW on 17 September 2022 requesting a cost estimate over the weekend because "this is the critical information for us to make the key decisions on Monday morning."[21]
• [10.29] On 18 September 2022, Ms Min received a bill of quantities from Mr Cheers.[22]
• [10.30] On 19 September 2022, Ms Min emailed Paul Jacuba of DRW as follows:

As discussed, the contract is us satisfying the DA condition, we are not satisfied with that and we need to prove that. We also have the concern on the project viability with the current DA design. When you discuss with the Council, can you ensure

1. As it currently stands, the council sees the impact on the number and design of lots proposed as per their email. This is the key to us exit the contract. Why no stamped plan with the decision notice.

2. The council views of the new design approach, how they see it and time involved in it."

• [10.31] On 20 September 2022, Ms Min asks Mr Jacuba whether there was any update from Council.[23]
• [10.32] Later on 20 September 2022, Mr Jacuba advised Ms Min that he hadn't been able to reach anyone at Council.[24]
• [10.33] On 21 September 2022, Skyrock demanded Brades Property to repay the loan to Skyrock.
• [10.34] Brades Property has refused to repay the loan to Skyrock.
• [10.35] Brades Property's conduct in sending the 15 June email was in trade or commerce within the meaning of the Australian Consumer Law, being s 18 of Sch II to the Competition and Consumer Act 2010 (Cth).
• [10.36] Since at least 7 October 2022, Brades Property marketed the lots in the Proposed Development for sale at prices from $329,000.
• [10.37] On 14 October 2022, pursuant to the Side Deed, Skyrock demanded Mr Brades repay the loan to Skyrock.
• [10.38] Despite demand each of Mr Brades and Brades PI have not repaid the loan to Skyrock.

• [11] The parties agree that a party who seeks to terminate a contract must have a lawful and valid basis to do so.
• [12] The defendants plead that they do not owe any sum to Skyrock, because Skyrock's termination of the Sale Agreement was not lawful and valid.
• [13] Skyrock admits that as Special Condition A was exercisable upon Skyrock "being satisfied", it needed to only act honestly in forming the view that the conditions of the approval of the Development Application were not satisfactory. In other words, it is submitted that Special Condition A required a subjective assessment.
• [14] Before turning to that issue though, the defendants have submitted that there is a threshold test which Skyrock has failed to meet and which renders each claim without merit.
• [15] They submit that the evidence makes clear that the basis upon which Skyrock understood the conditions in the Development Approval as reducing the lot number to below 15 is premised entirely on the Council email of 1 September 2022, and not on any provision in the Development Approval, contrary to Special Condition A.
• [16] The first step then is to determine what Special Condition A required of Skyrock.
• [17] Relevantly, Special Condition A stated that the Sale Agreement would be conditional upon Skyrock being satisfied that the conditions of the approval of the development application are consistent with the representations of Brades Property and do not include any provision which reduces the number of lots to below 15.
• [18] The plaintiff, however, has not identified any condition in the approval, that includes a provision which reduces the number of lots to below 15.
• [19] Rather, the plaintiff has produced evidence of the dissatisfaction and concern that Ms Min and Mr Leung had with the Decision Notice soon after their receipt of it.[25] That dissatisfaction arose from the fact that no stamped plan accompanied the approval. But the absence of a stamped plan, did not, of itself, constitute a provision which reduced the number of lots to below 15. There is no doubt that Ms Min held a concern that, in the absence of a stamped plan, the number of lots could be reduced to below 15, notwithstanding the fact that the approval was for a subdivision of one lot into 15. The enquiries which she subsequently made (as referred to in the timeline) were as a consequence of that concern.
• [20] But the wording of Special Condition A (on this point) is clear and unambiguous. Skyrock could only lawfully and validly terminate the Sale Agreement if satisfied that the conditions of the approval of the Development Application did not include any provision which reduced the number of lots to below 15. That does not include a provision which may allow for the ultimate number of lots to be below 15. Yet that is the position that Skyrock was confronted with.
• [21] As I have already noted, the Council email of 1 September 2022 relevantly stated:

"Council is of the view that compliance with Special Condition 2 may potentially lead to a change in the layout of the proposed development. The amendment of the detention strategy may subsequently impact on the number and design of the lots proposed." (My underlining)

• [22] That email makes it unambiguously clear, that the conditions of the approval of the Development Application, whilst including a provision which may reduce the number of lots to below 15, did not include a provision which positively so reduced the number of lots. Yet, Special Condition A requires such a positive reduction before Skyrock could lawfully and validly terminate the Sale Agreement on that basis.
• [23] Whilst it is acknowledged that Ms Min and Mr Leung had understandable concerns as to the profitability of the proposed venture, the wording of Special Condition A did not allow for the termination of the Sale Agreement on the basis of there being a chance that a subdivision into 15 lots might not occur. It follows, that the termination of the Sale Agreement, on that basis, was unlawful and invalid.
• [24] Skyrock submits however, that a second basis for a lawful and valid termination of the Sale Agreement existed. That is, that Special Condition A also provided that the Sale Agreement would be conditional upon Skyrock being satisfied that the conditions of the approval of the Development Application are consistent with the representations of Brades Property. The defendants submit that the conditions in the Development Approval were consistent with the lot number representation as they did not change the property from being divided into 15 lots.[26]
• [25] The issues which must be first addressed then, are what were the representations, then, and were such representations made by Brades Property.
• [26] Each of those issues, however, are not the subject of dispute. In the defendant's "opening outline of submissions" they state:

"The defendants accept that by reason of the 15 June email, the lot number representation was conveyed and that Mr White made that representation on behalf of Brades Property."[27]

• [27] The parties agree that the next issue which arises is whether the plaintiff's "satisfaction", pursuant to Special Condition A, is to be assessed on a subjective or objective basis.
• [28] In my view however that is not an issue which requires determination. Given the evidence, the plaintiff's stated dissatisfaction that the conditions of the Development Approval are consistent with the representation of Brades Property was well founded, irrespective of whether judged subjectively or objectively.
• [29] The email of 15 June relevantly and unambiguously stated that the property will be subdivided into 15 lots. That email then included a calculation as to the potential profit to be made upon the sale of those 15 developed lots.
• [30] That representation, therefore, was to the effect that the proposed sub-division will result in 15 separate lots. This was therefore a positive assertion of a future event with no room for any uncertainty as to the potential success of the proposed subdivision.
• [31] Yet, it is clear, that notwithstanding the nature of the approval of the Development Application, it was not consistent with such a degree of certainty.
• [32] Ms Mins' evidence that she was troubled by the absence of a Stamped Plan attached to the Decision Notice was demonstrably truthful. She immediately undertook enquiries as to the potential relevance of such an absence. Notwithstanding that the enquiries made on her behalf really did not provide an answer to what might be the final position, they did result in the Council email of 1 September 2022.
• [33] It is noteworthy that that email was sent under the hand of Abena Dankwa, who was also the "contact officer" on the Decision Notice. The information contained in that email therefore carried significant relevant weight as it came from an informed officer of the decision-making body.
• [34] Ms Dankwa's statement in that email:

"Council is of the view that compliance with special condition 2 may potentially lead to a change in the layout of the proposed development. The amendment of the detention strategy may subsequently impact on the number and design of the lots proposed."

• [35] This email highlights that the Development Approval, notwithstanding its conditions, potentially allowed for an outcome that reduced the number of lots to below 15.
• [36] That immediately gives rise to a degree of uncertainty that is quite inconsistent with the proposed lot number representations of the defendants.
• [37] The defendants have submitted that Skyrock's misunderstanding of the impact of the special conditions arises from Ms Min placing greater emphasis on the view of Ms Dankwa rather than on the terms of the Development Approval. In that regard, they refer to the reports and evidence of the expert witnesses, Mr Irvine and Mr Buckley.[28]
• [38] But that submission misses the point. It was not unreasonable (viewed either subjectively or objectively) for Skyrock to rely upon the Council email as confirmation or reinforcement of Skyrock's concerns about the uncertainty arising from the Decision Notice not including or referencing a stamped plan, in circumstances where the Council is the consent authority and the ultimate decision-maker as to the nature and size of any approved development of the property.
• [39] Ms Min's evidence was:

"The [Council email] was a real trigger point. I was already concerned about the conditions of the Approval Notice and the lack of a stamped plan attached to the Approval Notice. The email from the Council confirmed that the special conditions may potentially lead to a change in the design or a reduction in the lot yield of the subdivided property. Either of those options was going to significantly impact the viability of the project."[29]

• [40] Ms Min and Mr Leung's conclusion that the Council email threatened the yield and therefore the potential viability of the proposed development was honest. The Council email clearly implied that as at September 2022, the number of lots approved could be reduced.
• [41] Skyrock's decision to terminate the Sale Agreement because it was not satisfied that the conditions of the Decision Notice were consistent with the number of lots representation, was an honest exercise of Skyrock's discretion under Special Condition A.
• [42] Further, or in the alternative, if Skyrock was required to be objectively satisfied that the conditions of the Decision Notice were consistent with the number of lots representation, the situation does not change.
• [43] A decision notice should be clear on its face. In Hawkins and Izzard v Permarig Pty Ltd and Brisbane City Council (No. 1),[30] Brabazon QC, DCJ said:

"As a general rule, development consents are public documents which operate for the benefit of successive owners of the land, and they should be construed without reference to extrinsic evidence.

The basic principle is that reference may be properly made to those documents which are either actually incorporated in the approval or are incorporated by reference into it. Generally speaking, apart from such documents which are incorporated, it is not possible to go outside the approval document in considering its meaning. Even an application should not be referred to, unless it has, in whole or in part, expressly or by necessary implication, been incorporated in the consent."

• [44] The plaintiff submits that that is a principle which accords with commonsense and commerciality - parties submitting a development approval ought to have certainty when the decision-maker makes that decision. I agree with that submission. It is therefore unsurprising that both experts called by the parties, being Mr Irvine for the plaintiff and Mr Buckley for the defendant, agree with that principle.[31]
• [45] Even though the expert's opinions were that the Decision Notice allowed for 15 lots, it was also accepted that that was potentially subject to change in relation to the number of lots and the size of the lots.[32]
• [46] Despite the opinions of Mr Buckley and Mr Irvine that the Decision Notice did refer to a reconfiguration of the property into 15 lots, that does not detract from the fact that:

(a) the special conditions of the Decision Notice did not provide the certainty of a reference to an approved plan;

(b) as Mr Irvine opined, the reference to 15 lots at Part 5 of the Notice of Decision was merely a reference to what was proposed;[33] and

(c) the clear and unequivocal words of the Council email indicate that the number and design of the lots proposed may be impacted.

• [47] Ms Min's evidence that the Council email was the "trigger point" is clear and I accept that Skyrock acted on the unequivocal words of the Council. It was objectively reasonable for Skyrock to accept the Council's position because it was the consent authority and the Council email was a response to Zone Planning's attempt to obtain a stamped plan given its absence in the Decision Notice.
• [48] Furthermore, the defendant's submission that if the application was going to be refused by the Council, then a deemed development approval could not have been issued, misconstrues s 64 of the Planning Act 2016 (Qld). Subsection 5 states:

"On the day the assessment manager receives the deemed approval notice, the assessment manager is taken to have given an approval (a deemed approval) to the applicant."

• [49] Brades Property submitted a deemed approval notice on 17 August 2022 because it had failed to respond to the Council's information request of 9 August 2022.[34] That then "... required Council to issue its decision-notice on the DA within 10 business days from receiving the deemed approval notice."[35] Mr Enders confirmed in evidence that the process outlined in s 64(5) of the Planning Act 2016 (Qld) is what occurred in this matter.
• [50] As the plaintiff has correctly submitted, there was no discretion for the Council to not issue the decision notice. But, because it was a deemed decision notice in circumstances where an information request had not been responded to, it did not prevent the Council from imposing conditions.[36]
• [51] Finally, on this point I note that the defendants submit that the correspondence of 21 September 2022 from Skyrock's solicitors (termination letter) "only identifies the lot number representation as having been relied upon by Skyrock in entering into the Sale Agreement" and "is therefore also the most reliable evidence as to the basis upon which Skyrock purportedly terminated the Sale Agreement."
• [52] It is therefore worth repeating the relevant contents of that termination letter:[37]

"... on 25 August 2022, pursuant to a Deemed Approval Notice under section 64 of the Planning Act 2016 (Qld), the Application was approved (approval).

The approval was subject to conditions set out in the Notice of Decision. Those conditions require the Applicant, prior to lodgement of any Development Application for Operational Works, to submit to Council for approval:

(a) revised plans for the subdivision of the Property (Special Condition 1); and

(b) quantification of the capacity of the rubble pit (quantification) to accept proposed flow, certified by an experienced RPEQ, which may require amendments to the detention strategy for the development (Special Condition 2).

(c) On or about 15 September 2022, our client was provided with an email from the Gladstone Regional Council dated 1 September 2022 in which the Council wrote:

'Special Condition 1 serves as a precursor to Special Condition 2 ...

Council is of the view that compliance with Special 2 may potentially lead to a change in the layout of the proposed development. The amendment of the detention strategy may subsequently impact on the number and design of lots proposed.

In the circumstances described above, our client considers the Approval:

is not consistent with the Seller's Representations; and

includes a provision which may reduce the number of lots below 15.

Given the above our client elects to terminate the Contract in accordance with the Special Condition headed 'Development Approval'."

• [53] That letter is consistent with the evidence of Ms Min and Mr Leung, and is the most reliable evidence as to the basis upon which Skyrock terminated the agreement.
• [54] It follows that I am satisfied that, upon this basis, Skyrock validly and lawfully terminated the Sale Agreement.

Conditions typically imposed in similar developments

• [55] The plaintiff also submits that it lawfully and validly terminated the contract because it was not satisfied that the conditions of the approval of the Development Application were conditions typically imposed on similar developments - the difference allegedly being the absence of a stamped plan.
• [56] The first point to note, of course, is that this was not an issue that was identified in the termination letter, which immediately undermines the veracity of the claim.
• [57] Notwithstanding that fact though, the plaintiff's evidence on this issue is lacking. Ms Min had only ever sighted one previous development approval from the Gladstone Regional Council. To suggest that she was therefore in a position to be satisfied that the conditions in this matter were not typical is farfetched. Furthermore, insofar as Skyrock now relies on the difference between the wording of Special Condition 2 of the Development Approval requiring the submission of a report on the rubble pit capacity prior to the application for Operational Works as compared to the comparable decision notices referred to in Mr Buckley's supplementary report and Mr Irvine's second report, such difference has no practical effect and is of no relevance to this matter.[38]
• [58] The defendants have further submitted that the absence of a stamped plan from the Development Approval could not be a valid ground for termination within the scope of the 'conditions typically imposed' subclause.
• [59] However, the issue as to whether the absence of a stamped plan falls within such a scope does not require resolution, given my conclusion that Ms Min had not been in a position to determine if the conditions imposed were typical.

• [60] The email from Mr White to Ms Min on 15 June 2022, as agent for Brades Property relevantly said:

"I have estimated complete costs to build approx. $800,000 including power and comms and approx. $550K if I perform civil inhouse."

• [61] Ms Min gave evidence that she was aware at the time, that Mr Brades had recently undertaken a similar development in a nearby location. She attested that she therefore placed particular reliance on his estimate.

"No. I did heavily - as I mentioned, I heavily rely on seller's representation, given his familiarity of it, given his expertise, given he's just done one, given it's a reasonable area. I have rely on his representations, although I consider my own 'as well'."[39]

• [62] That evidence demonstrates that Ms Min did not, in fact, rely on Mr Brades' estimate. As she said, she arranged for quotations to be prepared, as one would expect. In fact, she obtained three "quotes" as to the likely construction costs.
• [63] On 25 June 2022, Ms Min sent an email to Mr White which stated the following:[40]

As discussed, the total construction cost (not just civil) we confirmed from three sets of quotes were very similar but they were much higher than the seller's estimation.

We prepare to offer $2m (inclusive of GST with approved DA), 10% deposit, unconditional, 30 days settlement after DA approval.

This is a genuine unconditional offer, if it doesn't get accepted we will move on to other deals."

• [64] That email is informative for three reasons:
  • [64.1] it shows that Ms Min understood that Mr Brades had provided an "estimate" only;
  • [64.2] it shows that Ms Min understood the difference between an "estimate" and a "quote"; and
  • [64.3] it shows that Ms Min was not prepared to act upon Mr Brades' estimate, but rather, undertook the sensible option of obtaining independent quotations.
• [65] This combination of evidence overwhelmingly shows that Ms Min did not rely on Mr Brades' estimate when deciding to purchase the property, notwithstanding her evidence to the contrary.

• [66] As I have already noted, the defendants do not dispute that Brades' property made the number of lots representation, as alleged, in the email of Mr White dated 15 June 2022.
• [67] The issue for determination however, is whether the representation was misleading or deceptive.
• [68] In Selfcare IP Holdings Pty Ltd v Allergan Australia Pty Ltd[41] at [80], the High Court identified the four-step process that is to be undertaken to determine whether particular conduct is misleading or deceptive.
• [69] The Court said:

"Determining whether a person has breached s 18 of the ACL involves four steps: first, identifying with precision the 'conduct' said to contravene s 18; second, considering whether the identified conduct was conduct 'in trade or commerce'; third, considering what meaning that conduct conveyed; and fourth, determining whether that conduct in light of that meaning was 'misleading or deceptive or ... likely to mislead or deceive'." (footnotes omitted)

• [70] Section 18 of the ACL provides, inter alia, that "a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive".
• [71] Section 4(1) of the ACL provides that if a person makes a representation with respect to any future matter and the person does not have reasonable grounds for making the representation, the representation is taken to be misleading.
• [72] The defendants have submitted that the representation was not misleading or deceptive because there were reasonable grounds for Brades property to have made it.
• [73] The plaintiff has submitted that as the Council's first request for further information was dated 16 May 2022[42] and that Brades Property did not respond to it until 5 July 2022, the Number of Lots Representation made on 15 June 2022 was made with the knowledge that:
  • [73.1] the Council required information for the purposes of considering Brades Property's application; and
  • [73.2] that, not having provided the requested information, there was no guarantee that the Council would have approved the 15 Lots proposed in the application.
• [74] The plaintiff has further submitted that, in these circumstances, Brades Property made the Number of Lots Representation with reckless indifference to their accuracy[43] and could not have had reasonable grounds to make the representation.
• [75] I note, that s 4 of the ACL places an evidential burden on the person who made the relevant representation to adduce evidence that there were reasonable grounds for making it.[44]
• [76] So, the question becomes: What was the actual representation?
• [77] There is no doubt on the evidence, nor is it disputed, that the representation made was that Development Approval would occur approving the subdivision of the block into 15 lots. Ms Min acknowledged that she understood that to be the representation in her evidence. In her affidavit of 20 March 2025, Ms Min attested that at the time Skyrock entered into the Sale Agreement, she believed that a development approval would be issued in the near future and that would confirm the property was approved for subdivision into a 15 Lot development.[45]
• [78] She also attested that she requested special conditions be included in the Sale Agreement to ensure the sale of the property was subject to obtaining a satisfactory development approval, so that if the Development Approval was not to her and Mr Leung's satisfaction, they would not have to settle and could recover the deposit.[46]
• [79] So, notwithstanding the positive assertion on the part of Brades Property that the application for subdivision into 15 lots would be successful, the plaintiff had the good sense to include those special conditions in the Sale Agreement.
• [80] That is unambiguous evidence that the plaintiff was not mislead or deceived by the first defendant, and that the representation made was not misleading or deceptive, or likely to mislead or deceive.
• [81] I also note, that the Council did ultimately approve the proposed subdivision into 15 lots,[47] albeit at some later time, which further supports the conclusion that the conduct of Brades Property in making the representation was not misleading or deceptive, and that Brades Property had reasonable grounds for making the representation.
• [82] There is therefore no merit to this aspect of the claim.

• [83] This part of the claim is based upon an assertion by the plaintiff, that where it was said in the 18 June email from Mr White to Ms Min:

"I would suggest the lots will range from $375K to $425K as there are approx. eight with great sea views."

that Mr White was referring to a sale price and not a listing price. It is further submitted that when compared to the average sale price referred to in the 15 June email of $365,000, and in the absence of supporting evidence as to how the range of price was estimated, the Selling Price Representation was apt to mislead and had no reasonable basis for it to be made.

• [84] Whether the range stated by Mr White in the 18 June email (which was just a cut and paste of an email from Mr Brades to Mr White on 17 June) was a listing or a sale range is not clear. Mr White appeared to accept in cross-examination that it was a sale price range,[48] although he was not the author of the text, as it was an email he had simply cut and pasted from an email to him from Mr Brades.
• [85] Mr Brades, rather unconvincingly, purported to be ignorant of the distinction between a listing price and a sale price.[49]
• [86] It must also be noted that in the 15 June email, Ms Min had also been advised that the average sale price for the 15 lots would be $365,000.
• [87] Ultimately, the evidence which is of the most persuasive value regarding this issue, is the following:
  • [86.1] The lots in the subject property were superior to the lots in the nearby property that Brades Property had developed and sold previously (Lot 12), because eight of the proposed lots had sea views;
  • [86.2] 13 of the 16 lots in Lot 12 had sold in just over three weeks; and
  • [86.3] the lots in Lot 12 sold for between $349,000 and $399,000.[50]
• [88] Given these uncontradicted facts, whether the range of $375,000 to $425,000 was a suggested listing price or selling price is of no moment. It is quite clear that at the time of making the representation, Brades Property had reasonable grounds for making it, based upon the sale prices of the properties in Lot 12.
• [89] Furthermore, I note that Ms Min attested that she did not rely on the suggested range of $375,000 to $425,000 when assessing the feasibility and viability of the proposed development. She said:[51]

"I actually, I wouldn't I, at that time, so if I time go back to the point of the reading the email, I wouldn't I just assume so that's his suggestion. However, on the 5th June, that feasibility is the one that I go by - of the number. As in, what we could achieve on the feasibility of the project_._"

• [90] In other words, Ms Min relied on the average sale price figure of $365,000 and not the pleaded range of $375,000 to $425,000.
• [91] For these reasons this part of the claim also fails.
• [92] The ACL claim is dismissed.

• [93] For these reasons I am satisfied that the debt claim and the contract claim have been proved to the requisite standard and that Skyrock is entitled to payment of $220,000 from Brades Property, Brades PI and Mr Brades as a debt or damages. I am also satisfied that interest on that amount should be paid at the rate of 10% per annum, as per their agreement.
• [94] As to the issues of costs, in accordance with the terms of the Side Deed, the parties agreed that costs would be paid on an indemnity basis. It appears to me that that would be the appropriate order to make although I note that no specific submissions as to that issue have yet been made by the defendants and I will allow further submissions to be made, if they wish to do so.

1. The plaintiff's claim is allowed.
2. The defendants pay to the plaintiff the sum of $220,000 as a debt or damages, plus interest at the rate of 10% per annum.
3. I will hear the parties as to the form of the orders and as to costs.
4. The ACL claim is dismissed.

[1] Affidavit of Jae Shim Min and Exhibit JSM-1 filed 28 March 2025 (Exhibit 2) ('First Min Bundle'), Pages 185-201.

[10] Town Planner and Director of Zone Planning.

[12] Director of Pinnacle Engineering Group.

[15] Affidavit of Stephen Enders and Exhibit SE-1 filed 21 May 2025 (Exhibit 15) ('First Enders Bundle'), Page 4.

[25] First Min Bundle, Pages 189-191 at [63]-[66(a)], [67]-[72].

[26] First Expert Report of Christopher Buckley dated 15 May 2025 (Exhibit 10), Page 6 at [45]-[46].

[27] Defendant's Opening Outline of Submissions, Page 7 at [32].

[28] Transcript of Proceedings on 29 July 2025, Pages 49, 51-52.

[29] First Min Bundle, Page 15 at [72], and Page 16 [75(d)]. See also Affidavit of Raymond Kwok Ming Leung and Exhibit RK-1 filed 28 March 2025 (Exhibit 5) ('First Leung Bundle'), Page 7 at [44], where Mr Leung deposes to a similar conclusion in relation to the Council email.

[30] [2001] QPELR 414. Rackemann DCJ made a similar observation in Brisville Pty Ltd v Brisbane City Council [2007] QPEC 63; [2007] QPELR 637.

[31] See First Expert Report of Alan John Irvine dated 13 June 2024 (Exhibit 6) ('First Irvine Report'), Page 7 at [34]; See Transcript of Proceeding on 29 July 2025, Page 53 at [14]-[28].

[32] Transcript of Proceedings on 29 July 2025, Page 56 at [1], [37]-[38].

[34] First Enders Bundle, Page 2 at [13].

[36] Transcript of Proceedings on 29 July 2025, Page 56 at [21]-[24].

[38] Transcript of Proceedings on 30 July 2025, Page 65 at [15]-[44]; Transcript of Proceedings on 29 July 2025, Page 59 at [19]-[23], [30]-[45], Page 60 at [1]-[7], Page 62 at [22]-[27].

[39] Transcript of Proceedings on 28 July 2025, Page 44 at [21]-[24].

[41] [2023] HCA 8; (2023) 277 CLR 186.

[42] First Enders Bundle, Page 2 at [10]-[11].

[43] Bill Acceptance Corp Ltd v GWA Ltd (1983) 50 ALR 242 at 250.

[44] Lin v Zeng [2023] NSWCA 174 at [31]- [36].

[45] First Min Bundle, Page 8 at [37(b)].

[47] By issuing a Negotiated Decision Notice which replaced the Decision Notice granting the Development Approval (pursuant to s 76(4) of the Planning Act 2016 (Qld))

[48] Transcript of Proceedings on 29 July 2025, Page 83 at [32].

[49] Transcript of Proceedings on 30 July 2025, Page 34 at [25], Page 35 at [10].

[50] Affidavit of Phillip James Brades & Exhibit PB-1 filed 21 May 2025 (Exhibit 13) ('First Brades Bundle'), Exhibit PB-1 Page 9.

[51] Transcript of Proceedings on 28 July 2025, Page 48 at [43]-[46].