Relaxed requirements for written notice under the Environmental Protection Act 1994 - 21 January 2019
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This document summarizes a recent court case that relaxed the notice requirements under the Environmental Protection Act 1994. The court found that electronic access to documents containing information about site contamination satisfied the notice requirement. Specifically: 1) The case involved the sale of a contaminated development site where the buyer later tried to rescind the contract, claiming it did not receive proper notice of the contamination under the EPA. 2) However, the court found that notice was given, as documents in an online data room describing the contamination were electronically accessed by an employee of the buyer before the contract was signed. 3) This decision confirmed that notice can take many forms under the EPA, including electronic access to relevant documents, and does not
![GOLD COAST REAL ESTATE TEAM CONTACTS TO EMAIL A MEMBER OF OUR TEAM USE FIRSTNAME.LASTNAME@MINTERELLISON.COM
Bryce Melville Rebecca Sheppard Yvette Mason Shona Tarulli Marieanne
Golubinsky
Mark Borg Meaghan Brodie Juliette Murray Danika Cardon-
Smith
PARTNER SENIOR ASSOCIATE ASSOCIATE ASSOCIATE LAWYER LAWYER PARALEGAL GRADUATE CLERK
+61 7 5553 9424 +61 7 5553 9490 +61 7 5553 9400 +61 7 5553 9400 +61 7 5553 9539 +61 7 5553 9530 +61 7 5553 9411 +61 7 5553 9455 +61 7 5553 9512
21 January 2019
Property Developments
Relaxed requirements of written notice under the Environmental Protection Act 1994
The recent Court of Appeal decision of Albion Mill FCP
Pty Ltd v FKP Commercial Developments Pty Ltd [2018]
QCA 229 has highlighted that notice requirements under
the Environmental Protection Act 1994 (EPA) are
sufficiently flexible to include electronic communication.
Background
FKP Commercial Developments Pty Ltd (Seller) entered
into a contract with Albion Mill FCP Pty Ltd (Buyer) for
the sale of a development site. The site contained 12
lots ¨C three of which were contaminated and listed on
the Environmental Management Register (EMR).
The contract (as varied) required the Buyer to pay an
¡®interest amount¡¯ on 1 November 2016, but the Buyer
failed to make the payment. The Seller¡¯s solicitor sent a
default notice on 2 November 2016 requiring payment
within 30 days.
The Buyer¡¯s solicitor purported to rescind the contract
on 1 December 2016 because notice of the
contamination hadn¡¯t been given under the EPA.
The Seller¡¯s solicitor rejected the Buyer¡¯s rescission on 5
December 2016 and terminated the contract. The Seller
then commenced a claim for damages against the
Buyer.
Documents in the data room
The Seller negotiated with Fridcorp Projects Pty Ltd
(Fridcorp) for the sale of the site before entering into the
contract with the Buyer.
An employee of Fridcorp (Mr Roche) was given access to
a data room containing information about the site
(including the contamination).
Mr Roche was appointed as the sole director of the Buyer
after his access was used to download the materials from
the data room and before the contract was signed.
Arguments and Decision
The Buyer argued that it had a right to rescind the contract
because the required notice of the contamination hadn¡¯t
been given under the EPA.
The Court held that the notice had been given to the Buyer
in compliance with the EPA ¡®by reason of the notice that
was given to Mr Roche on behalf of Fridcorp.¡¯ The Seller
was awarded damages against the Buyer and its
guarantor.
The decision was upheld by the Queensland Court of
Appeal, who dismissed the appeal with costs.
What does this mean?
It is important to note that notice can take many forms ¨C
electronic access of documents may be sufficient for
awareness of the matters contained therein.
However, best practice remains for notices to be clearly
given within the required timeframe.
*Disclaimer
The information contained in this update is intended as a guide only.
Professional advice should be sought before applying any of the information
to particular circumstances. While every reasonable care has been taken in
the preparation of this update, MinterEllison does not accept liability for any
errors it may contain](https://image.slidesharecdn.com/relaxedrequirementsforwrittennoticeundertheenvironmentalprotectionact199421-190121050505/85/Relaxed-requirements-for-written-notice-under-the-Environmental-Protection-Act-1994-21-January-2019-1-320.jpg)
Relaxed requirements for written notice under the Environmental Protection Act 1994 - 21 January 2019
- 1. GOLD COAST REAL ESTATE TEAM CONTACTS TO EMAIL A MEMBER OF OUR TEAM USE FIRSTNAME.LASTNAME@MINTERELLISON.COM Bryce Melville Rebecca Sheppard Yvette Mason Shona Tarulli Marieanne Golubinsky Mark Borg Meaghan Brodie Juliette Murray Danika Cardon- Smith PARTNER SENIOR ASSOCIATE ASSOCIATE ASSOCIATE LAWYER LAWYER PARALEGAL GRADUATE CLERK +61 7 5553 9424 +61 7 5553 9490 +61 7 5553 9400 +61 7 5553 9400 +61 7 5553 9539 +61 7 5553 9530 +61 7 5553 9411 +61 7 5553 9455 +61 7 5553 9512 21 January 2019 Property Developments Relaxed requirements of written notice under the Environmental Protection Act 1994 The recent Court of Appeal decision of Albion Mill FCP Pty Ltd v FKP Commercial Developments Pty Ltd [2018] QCA 229 has highlighted that notice requirements under the Environmental Protection Act 1994 (EPA) are sufficiently flexible to include electronic communication. Background FKP Commercial Developments Pty Ltd (Seller) entered into a contract with Albion Mill FCP Pty Ltd (Buyer) for the sale of a development site. The site contained 12 lots ¨C three of which were contaminated and listed on the Environmental Management Register (EMR). The contract (as varied) required the Buyer to pay an ¡®interest amount¡¯ on 1 November 2016, but the Buyer failed to make the payment. The Seller¡¯s solicitor sent a default notice on 2 November 2016 requiring payment within 30 days. The Buyer¡¯s solicitor purported to rescind the contract on 1 December 2016 because notice of the contamination hadn¡¯t been given under the EPA. The Seller¡¯s solicitor rejected the Buyer¡¯s rescission on 5 December 2016 and terminated the contract. The Seller then commenced a claim for damages against the Buyer. Documents in the data room The Seller negotiated with Fridcorp Projects Pty Ltd (Fridcorp) for the sale of the site before entering into the contract with the Buyer. An employee of Fridcorp (Mr Roche) was given access to a data room containing information about the site (including the contamination). Mr Roche was appointed as the sole director of the Buyer after his access was used to download the materials from the data room and before the contract was signed. Arguments and Decision The Buyer argued that it had a right to rescind the contract because the required notice of the contamination hadn¡¯t been given under the EPA. The Court held that the notice had been given to the Buyer in compliance with the EPA ¡®by reason of the notice that was given to Mr Roche on behalf of Fridcorp.¡¯ The Seller was awarded damages against the Buyer and its guarantor. The decision was upheld by the Queensland Court of Appeal, who dismissed the appeal with costs. What does this mean? It is important to note that notice can take many forms ¨C electronic access of documents may be sufficient for awareness of the matters contained therein. However, best practice remains for notices to be clearly given within the required timeframe. *Disclaimer The information contained in this update is intended as a guide only. Professional advice should be sought before applying any of the information to particular circumstances. While every reasonable care has been taken in the preparation of this update, MinterEllison does not accept liability for any errors it may contain