Mirvac offside as Queensland Court of Appeal finds unit owner can void contract on flooded apartment

Mirvac's Tennyson Reach

DISPUTE: Mirvac's Tennyson Reach apartment block which was flooded in January.


A BUYER could rescind a contract to buy a multimillion-dollar unit after it was made uninhabitable by Brisbane's January flood, the Court of Appeal has found.

It was seen as a test case over whether a buyer could void a contract following the floods.

Maris Anne Dunworth had been battling with the unit complex builders Mirvac Queensland Pty Limited for several years.

However, matters came to a head when the lower ground unit was inundated by floodwaters on January 13.

In July 2007, Mrs Dunworth, the wife of former Wallaby footballer David Dunworth, agreed to buy the residential apartment in a proposed building at Tennyson, in Brisbane's south, for $2.155 million.

Before any completion of the contract, the by-then completed building, was flooded and it was necessary to remove the lower level of gyprock sheeting of the walls and to disconnect the electrical wiring and appliances.

However, Mrs Dunworth rejected the offer to restore the unit, and on January 28 purported to rescind the contract on the grounds that the unit had been rendered unfit for occupation.

The matter went to the Supreme Court in February where a judge found against Mrs Dunworth and gave Mirvac until June to complete the work.

Mrs Dunworth then appealed and in an unanimous judgment today the Court of Appeal upheld the appeal, set aside the Supreme Court orders and declared she had validly rescinded her contract with Mirvac on January 28.

The Court awarded costs to Mrs Dunworth.

Earlier on December 10 last year, Mrs Dunworth had lost another court bid to get a contract on the Tennyson Reach apartment declared void.

Mrs Dunworth wanted to void the contract because she alleged the apartment was not as high off the ground or as private as she thought.

But a judge ordered a specific performance of the contract, requiring completion by February 8 this year.

Then the January 13 flood struck and Mrs Dunworth again sought to void the contract on the grounds the unit was uninhabitable.


CONSUMER COMMENT: Even if Mirvac was on good legal ground - which they weren't - it was an act of complete bastardry not to allow Maris Dunworth to rescind the contract after her unit was destroyed in the 2011 flood.  This case makes Mirvac look as bad as the insurance companies who treated members of the public so badly after the flood.  Another consumer win against a once-invincible corporate giant!