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AITKEN WILSON LAWYERS > Current Issues - Buying and Selling Property

PAMDA - News Article 03/04/09

- not so black and white 
- definitely not cute and cuddly

PAMDA is the acronym for the Property Agents and Motor Dealers Act in Queensland.  Anyone who buys or sells residential property in Queensland is bound by its provisions.  It can provide a lot of pitfalls for unsuspecting sellers and gives ‘outs’ to buyers if the seller or the seller’s agents don’t follow the letter of the law exactly.

As well as Governing the Licensing requirements to be complied with by Real Estate Agents it also sets out some strict provisions pertaining to when parties are bound under a Queensland Property Contract, and with the current economic climate and people looking to get out of Contracts that they have entered into, there is a lot of Litigation arising under the PAMDA Laws.

These Laws are anything but Black and White. In a Supreme Court case handed down by Justice Fryberg on the 29th October, 2008, [Hedley Commercial Property Services Pty Ltd –V- BRCP Oasis Land Pty Ltd]  his honour said,
"On any view Section 365 is a confused mess. No construction of it can be devised which conforms with canons of interpretation and the accepted theory of the Law of Contract. It is impossible to define the statutory intent with any sense of confidence."[Paragraph [84] of Hedley's Decision]

And to confirm my headline that the PAMDA is definitely not cute and cuddly, Buyers who are perfectly well aware of the warning Statement given by the Agent by Virtue of it being attached to the Contract are being permitted to walk away from concluded Property deals even where they had signed saying they had received the warning! Again Justice Fryberg sums up the situation quite well when he said, "Form triumphs over substance. Unless the magic words are written or the magic spell is cast the Buyer is not bound. Well may it laugh at the Seller who failed to learn all the details of the PAMDA Book of incantations."[Paragraph [88] of Hedley's Decision]
On any reckoning PAMDA matters are certainly not Black and White to deal with, and they are far from Cute and Cuddly. Buyers may be able to terminate a Contract prior to it settling. This then puts stress and strain on the Seller, many of whom are Developers who are already feeling the pinch with the economic climate. This then may open the door for compensation claims by the Buyers against Sellers; Buyers against Real Estate Agents; Sellers against Real Estate Agents and the plot thickens. Court cases will continue and parties will lose a lot until the Government corrects this situation where the "Law is an ass."

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