Angad Trans Pty Ltd v Chiarelli
[2025] VSC 420
•15 July 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2024 02100
| ANGAD TRANS PTY LTD (ACN 633 888 221) as trustee for the ANGAD FAMILY TRUST & ANOR (see attached Schedule) | Plaintiffs |
| v | |
| ROSANNA CHIARELLI, SONIA DANISTER and DAVID CHIARELLI as administrators of the estate of MARINO CHIARELLI (deceased) | Defendant |
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JUDGE: | K Judd J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 May 2025 |
DATE OF JUDGMENT: | 15 July 2025 |
CASE MAY BE CITED AS: | Angad Trans Pty Ltd v Chiarelli |
MEDIUM NEUTRAL CITATION: | [2025] VSC 420 |
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CONTRACT – Application for summary judgment – Appeal from associate judge – Whether completion of contract contingent on rezoning and subdivision being obtained prior to settlement.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | J McKay | Banga Legal |
| For the Defendant | T Sowden | Conlan Cummings Lawyers |
HER HONOUR:
Overview
This is an appeal from orders made by the Court constituted by an associate judge on 10 October 2024, summarily dismissing the plaintiffs’ claim against Marino Chiarelli (deceased) (the vendor) and granting summary judgment for the vendor on the counterclaim.[1]
[1]By order made on 6 May 2025, the administrators of the Estate of Marino Chiarelli were added to the proceeding as defendants and plaintiffs by counterclaim in substitution for Marino Chiarelli.
The proceeding relates to a dispute in respect of a contract for the sale of land in Epping for $9.5 million. The land is said to be worth only $5 million without rezoning from a Farming Zone to a Comprehensive Development Zone or Urban Growth Zone.
The contract of sale was entered into between the vendor and the first plaintiff, as purchaser, on 22 April 2022. The first plaintiff paid two deposits of $475,000 each. On 18 July 2023, the first plaintiff nominated the second plaintiff as substituted purchaser under the terms of the contract. The settlement date was 16 months from the date of signing of the contract.
The contract of sale contained a special condition providing as follows:
Special condition 4 – Access
The vendor will provide reasonable access to the property as mutually agreed to surveyors and town planners for the purpose of rezoning and subdivision approval prior to settlement and will provide assistance in signing all paperwork required for the council and planning authority.
On 30 July 2023, the second plaintiff issued proceedings against the vendor seeking orders extending the settlement date and an injunction restraining the vendor from enforcing specific performance and completion of the contract until 24 April 2024. The proceeding involved allegations that the vendor had breached special condition 4 by not granting access to the land and, in particular, not permitting soil testing to be undertaken on the land for the purpose of the zoning and subdivision applications.
The parties engaged in mediation, with terms of settlement (signed by both plaintiffs and the vendor) containing the following terms:
1.The contract is to be amended as follows:
a.Special Conditions 1, 2, 3 and 5 are to be deleted: and
b.The settlement date is extended to 5 April 2024,
in consideration of OHR[2] paying Chiarelli $100,000 by 30 November 2023, $20,000 by 15 March 2024 and $30,000 at settlement.
2.Time is of the essence in respect of all obligations in paragraph 1 above and for the avoidance of doubt in the event that the payments are not made in accordance with that paragraph Chiarelli will be at liberty to rescind the contract in accordance with its terms.
3.Paragraph 2 is without prejudice to any rights Chiarelli may have to pursue OHR for any amounts outstanding under these terms or the contract.
4.A breach of these terms will otherwise constitute a breach of the contract.
5.OHR acknowledges that it is liable for and to the extent that it is necessary will indemnify Chiarelli against any land tax accruing in respect of the property from 1 January 2024.
6.OHR warrants that it will not complete the rezoning process referred to in special condition 4 of the contract until at or after settlement.
7.The parties will seek orders dismissing the proceeding with no order as to costs.
[2]The second plaintiff.
The second plaintiff paid the amounts required under clause 1 of the terms of settlement. On 20 and 27 March 2024, the plaintiffs sought a 12 month extension to the settlement date. This proposal was rejected by the vendor. The plaintiffs failed to complete the contract of sale on 5 April 2024.
On 24 April 2024, the vendor served on the plaintiffs a notice of default and rescission, notifying them that, unless they complied with the notice within 14 days, the contract of sale would be rescinded.
On 1 May 2024 the plaintiffs commenced the current proceeding seeking an order that the notice of default be set aside and a declaration that the date of settlement of the contract is a date within a reasonable time after the rezoning of the land. The vendor filed a counterclaim seeking an order against the second plaintiff for removal of a caveat. The Registrar of Titles has advised that she does not intend to appear.
The central issue in the proceeding involves the interpretation of special condition 4, and in particular whether settlement of the contract of sale was conditional upon rezoning and subdivision approval.
The plaintiffs position was that:
(a) The words ‘prior to settlement’ should be construed as rendering the obligation to complete the contract conditional on rezoning and subdivision approval for the land being obtained prior to the stipulated settlement date. The words ‘prior to settlement’ do not merely specify the timeframe for the provision of access (being access prior to settlement), and they are not otiose (as would be the case if the plaintiffs’ construction were rejected by the Court). Rather, special condition 4 should be construed as providing for access prior to settlement, and as qualifying the obligation to settle until the objective stated in the condition was attained;
(b) In circumstances where a condition precedent to settlement has not been fulfilled by the stipulated date for completion, the courts will read the contract of sale as imposing a reasonable time for the satisfaction of the condition and the completion of the conveyance;
(c) Clause 6 of the terms of settlement contained a warranty given by the second plaintiff in its capacity as nominee, and as such did not operate to modify special condition 4. But in any event, clause 6 and special condition 4 are capable of harmonious operation.
The vendor’s position was that:
(a) Special condition 4 simply provides a means of facilitating access to the property before settlement;
(b) Were there any doubt as to the operation of special condition 4, it is overridden by clause 6 of the terms of settlement which amended the contract of sale by extending settlement to 5 April 2024, and stipulating that rezoning will not be completed until at or after settlement;
(c) The construction advanced by the plaintiffs would deprive the parties of certainty as the rezoning process, and therefore the date for settlement, could take months or even years;
(d) Even if the contract of sale were to be construed as a conditional contract, it had a date fixed for completion of the sale. That fixed date was the date for determining whether the condition had been fulfilled or not.
(e) The Court should not read the contract of sale as imposing a reasonable time for satisfaction of the condition beyond that fixed date, as a reasonable time is only to be implied where no date for completion of the sale is fixed.
The associate judge articulated the central questions for determination and their answers as follows:
Do the purchasers have any real prospect of success in establishing:
(a)the rezoning of the property was a condition precedent to settlement? No
(b)the contract of sale contains an implied term that settlement is not required until after rezoning? No[3]
[3]Angad Trans Pty Ltd v Marino Chiarelli [2024] VSC 622, [5] (Ierodiaconou AsJ).
The affidavits relied on by the parties consisted of an affidavit sworn by Simon Curry on 6 June 2024 and an affidavit affirmed by Hirani Nair on 3 September 2024.[4]
[4]There was also an affidavit affirmed by Hirani Nair on 1 November 2024 in respect of the extension of time application, and an affidavit sworn by Simon Curry on 23 April 2025 in support of orders made adding the administrators of the Estate of Marino Chiarelli to the proceeding in substitution for Marino Chiarelli.
Appeal from an associate judge
The appeal is governed by s 17(3) of the Supreme Court Act 1986 and r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Supreme Court Rules’). The nature of the appeal was explained in Stubbings v Jams 2 Pty Ltd:[5]
On an appeal from an associate judge, a judge has the power to, among other things, give any judgment and make any order which ought to have been given or made and make any further or other order as the case may require. The appeal is a rehearing and, ordinarily, an appellant is required to demonstrate error before the Court may exercise appellate power.[6]
[5](2017) 53 VR 420 (Elliot J).
[6]Stubbings v Jams 2 Pty Ltd (2017) 53 VR 420, [31] (Elliot J).
The error may be legal, factual or discretionary[7] and must be of a nature that works an injustice to the appellant.[8]
[7]Weber v Deakin University (2016) 51 VR 272, 279 (Zammit J); Wilson v Building Commission (Vic) [2015] VSC 629, [8] (Dixon J).
[8]Weber v Deakin University (2016) 51 VR 272, 280-281 (Zammit J); Wilson v Building Commission (Vic) [2015] VSC 629, [37] (Dixon J).
Summary judgment principles
The test to be applied in respect of determining an application for summary judgment is set out in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[9]
Upon the present state of authority:
a)the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
b)the test is to be applied with reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleading fails to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
[9][2013] VSCA 158, [35] (Warren CJ and Nettle JA).
In respect of cases involving the disputed construction of an agreement, particularly where questions of ambiguity arise, summary judgment may not be appropriate,[10] even where ‘the plaintiff’s case seems strong on the law and indeed on the merits.’[11]
[10]Israfoods (2006) Ltd v J & D Consortium Pty Ltd [2019] VSC 323, [52] (Sloss J); Amcor Ltd v Peter James Ramsay & Associates Pty Ltd [2018] VSC 75, [72]-[73] (Kennedy J).
[11]APN Funds Management Ltd v Australian Property Investments Strategic Pty Ltd [2011] VSC 555, [11] (Bell J).
Grounds of appeal
There are eight grounds of appeal.
Ground 1 alleges that the associate judge erred in finding, at paragraph [85] of her reasons, that the contract of sale, as amended by the terms of settlement, contained no condition to the effect that settlement of the contract was subject to the rezoning of the land.
Ground 2 alleges that the associate judge erred in finding, at paragraph [87] of her reasons, that the terms of the contract of sale and terms of settlement were clear, insofar as they provided for settlement to occur 16 months from the date of sale.
Ground 3 alleges that having accepted, at paragraph [88] of the reasons, that special condition 4 of the contract of sale contemplated that the rezoning would occur prior to settlement, the associate judge erred in finding that settlement was not contingent upon the rezoning.
Ground 4 alleges that the associate judge erred in finding, at paragraph [89] of her reasons, that clause 6 of the terms of settlement expressly changed the contemplated time frame for the rezoning from prior to settlement until after settlement.
Ground 5 alleges that the associate judge erred in finding, at paragraph [95] of her reasons, that clause 6 of the terms of settlement was contrary to a condition that settlement of the contract was subject to the rezoning and/or that clause 6 superseded any such condition.
Ground 6 alleges that the associate judge erred in finding, at paragraph [96]-[99] of her reasons, that the purpose of the contract of sale and terms of settlement did not support the plaintiffs’ contention that settlement of the contract of sale was subject to the rezoning.
Ground 7 alleges that the associate judge erred in finding, at paragraph [103] of her reasons, that it would not make commercial sense for the vendor to wait indefinitely for the rezoning approval.
Ground 8 alleges that the associate judge erred in finding, at paragraph [115]-[118] of her reasons, that no term should be implied in the contract of sale to the effect that settlement was not required until after the rezoning.
Extension of time
The plaintiffs did not file their notice of appeal within the time required by the Supreme Court Rules. They seek an order extending the time within which to do so. The plaintiffs’ solicitor takes responsibility for the delay, stating that she erred in assessing the time within which to make the appeal, believing it to be 28 days rather than 14.
Although the granting of an extension of time for filing a notice of appeal is not automatic, I accept that there is a genuine and honest explanation for the delay. The delay was of short duration, with the notice of appeal being filed on 1 November 2024 rather than by 24 October 2024. No prejudice has been alleged. This is not an appeal which so lacks merit as to be futile. I am prepared to grant an extension of time as sought.
Ground 1
Paragraph [85] of her Honour’s reasons reads as follows:
First, the contract of sale, as amended by the TOS, expresses no such condition. In contrast to the alleged condition precedent, which is not expressly contained in the contract of sale, there is a condition expressed in the contract of sale (Special Condition 5), which states that the contract is conditional upon a deposit being paid by a stipulated date.[12]
[12]Angad Trans Pty Ltd v Marino Chiarelli [2024] VSC 622, [85] (Ierodiaconou AsJ).
The plaintiffs submitted that it is at least reasonably arguable that special condition 4 does expressly render the completion of the contract contingent on rezoning and subdivision being obtained prior to settlement. The plaintiffs’ submitted that the words ‘prior to settlement’ would have been omitted if the intention of the parties had simply been to facilitate access to the land.
The plaintiffs further submitted that such an interpretation is supported by the associate judge’s findings in the first part of paragraph [88], which reads as follows:
Special condition 4 is titled ‘Access’. It provides for access before settlement, and assistance with paperwork for subdivision and rezoning. On reflection, I accept that there is a good argument that the words ‘prior to settlement’ relate to the words immediately before them. That is, the phrase ‘for the purpose of rezoning and subdivision approval prior to settlement.’ It would be superfluous if the words related to access to the Property generally (ie be read as ‘the vendor will provide reasonable access to the property … prior to settlement’). This is because the only time the vendor could give access is prior to settlement. After settlement, the vendor has no rights over the Property. Accordingly, I accept that Special Condition 4 contemplates rezoning before settlement.’
In this regard, the plaintiffs submitted that once it is accepted that the words ‘prior to settlement’ operate with respect to the rezoning and subdivision approval and that special condition 4 contemplates rezoning before settlement, it is difficult to see why this commercial purpose is not reflected in the construction of special condition 4.[13]
[13]This argument was also raised as part of ground three.
The vendor submitted that special condition 4 ought to be read in a manner such that it simply provides a means of facilitating access to the property before settlement.
The vendor accepted that the finding of the associate judge in this regard, namely that the special condition allows the plaintiffs access to the property to obtain zoning and other approvals prior to settlement, was not the interpretation that they had advanced below. However, they submitted that such an interpretation sits comfortably with their position.
Whilst her Honour’s finding in paragraph [88] recognises that the parties mutually contemplated that rezoning and subdivision might occur before settlement, I do not accept that such finding is tantamount to a finding that the obligation to complete was contingent on the approval of the rezoning and subdivision.
Notwithstanding my reading of paragraph [88], I am of the view that it cannot be said that there is no ambiguity to special condition 4. Three interpretations have been advanced in submissions before me: one put forward by the plaintiffs; one put forward by the vendor; and the interpretation given to special condition 4 by her Honour. Despite the logic of the interpretation given to special condition 4 by her Honour, I am not persuaded that this interpretation is necessarily the only realistic interpretation open, such that there should be summary judgment.
In reaching this conclusion, I have had regard to the authorities which permit a trial judge to resolve issues of construction by giving consideration to the circumstances in which a contract was formed and the commercial purpose which the parties were seeking to attain.[14]
[14]Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd (2014) 251 CLR 640, 656-657 [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, 116-117 [46]-[49] (French CJ, Nettle and Gordon JJ).
There was a further argument advanced by the plaintiffs by reason of the reference at [85] to the contract of sale having been ‘amended’ by the terms of settlement. The plaintiffs submitted that her Honour proceeded on the basis that the terms of settlement amended the contract of sale, but the interrelationship between the terms of settlement and the contract was itself a complex question that created a real controversy that ought be determined at trial in the ordinary way.[15] The plaintiffs submitted that:
[15]This argument was also raised as part of grounds 4 and 5.
(a) the associate judge seems to have reasoned that the nomination of the second plaintiff had the effect of making the second plaintiff a party to the contract in substitution for, or in addition to, the first plaintiff;
(b) however, the correct legal position is that a nomination leaves the contract of sale in place between the purchaser and vendor, and constitutes the mere exercise of a power by the purchaser to have the vendor complete the contract by conveying the land to a third party;
(c) as such, the second plaintiff in giving the warranty set out in clause 6, could not legally have been altering an earlier agreement to which it was not privy; and the first plaintiff, who did not give the warranty, could not be said to be giving any promise that could be taken to alter or override special condition 4;
(d) rather, clause 6 of the terms of settlement contained a warranty given by the second plaintiff in its capacity as nominee, which operated as a promise to compensate the defendant for any losses associated with the rezoning and subdivision being completed prior to settlement;
(e) there was a good reason for the parties to confer such a right of compensation on the defendant, namely the potential operation of the Windfall Gains Tax Act 2021 (Vic).
The position taken by the plaintiffs on appeal in this regard might be seen to differ from the position taken below. The associate judge recorded in her reasons that it was common ground that the terms of settlement operated as an amendment to the contract of sale.[16] I accept the plaintiffs’ submissions that it is not clear that the plaintiffs conceded that every provision in the terms of settlement operated as a variation. In any event, at best the concession was as to a legal conclusion rather than on an evidentiary issue, with no associated prejudice ‘save of course if the point were found against the [vendor]’.[17]
[16]Angad Trans Pty Ltd v Marino Chiarelli [2024] VSC 622, [51], [95] (AsJ Ierodiaconou).
[17]MLW Technology Pty Ltd v May [2005] VSCA 29, [75].
The vendor submitted that:
(a) whether the second plaintiff is or is not a party to the contract of sale is of no consequence;
(b) clause 6 is not expressed in terms ordinarily associated with a warranty, namely, as an assurance as to the existence of certain facts;
(c) clause 6 unambiguously addresses the manner in which and the date on which settlement is to occur, a condition which invariably goes to the heart of the contract of sale.
The plaintiffs’ complaint about this aspect of paragraph [85] of her Honour’s reasons overlaps with grounds four and five, and are addressed to the extent necessary below. Given my findings in respect of ground 1, it is not necessary to specifically address this issue as part of my analysis of ground 1.
Grounds 2 and 3
Grounds 2 and 3 were argued together.
It was first submitted by the plaintiffs that the fact that the contract specified a particular settlement does not make it ‘clear’ that special condition 4 did not operate as a condition precent to settlement. Given my conclusions in respect of ground 1, namely that the interpretation given to special condition 4 by her Honour is not necessarily the only realistic interpretation open, it is not necessary to deal with this alleged error as a separate ground of appeal.
To the extent that the plaintiffs submit that, if you have a situation such as this, then you engraft onto the contract a further reasonable time for satisfaction of the condition and then completion of the bargain, I deal with this later in the judgment.
Secondly, it was submitted that, having held that the words ‘prior to settlement’ operated in connection with the rezoning and subdivision approval rather than in connection with the access to the land, it is reasonably arguable that the obligation to complete was itself conditional upon the grant of such approval.
I have dealt with this submission as part of ground 1. Given my conclusion as to how paragraph [88] of her Honour’s reasons should be read, I am not persuaded that there is any merit to this point.
Grounds 4 and 5
Grounds 4 and 5 were argued together. The major complaint is that the judge erred in proceeding on the basis that clause 6 of the terms of settlement amended the contract of sale.
The submissions of the parties on this point are largely set out above, as the point was also raised in respect of ground one.
The operative part of the terms of settlement contained a number of provisions. Clause 1 specifically stated that the contract of sale was to be amended, including by extending the settlement date to 5 April 2024. However, in contrast, clause 6 is not phrased as an amendment. It is phrased as a warranty given by the second plaintiff.
At paragraph 19(c) of his affidavit, Mr Curry stated as follows:
At the request of the defendant the second plaintiff (in this proceeding) warranted that it would not complete the rezoning process until at or after settlement. By this clause the defendant sought to ensure that he would not be liable for any windfall gains tax that might be payable on the land if a rezoning were to occur before settlement.
The Windfall Gains Tax Act 2021 provides that upon the completion of the rezoning process, the owner of the land is liable to pay windfall gains tax on the land, so it is understandable that the vendor wanted to ensure that he would not be liable to pay such tax.
The plaintiffs submitted that ‘completion’ of the rezoning process can be compared to the ‘approval’ of a rezoning amendment. An amendment must first be approved by the planning authority and the Minister for Planning under ss 29(1) and 35(1) of the Planning and Environment Act 1987 (‘Planning and Environment Act’), but it is not completed until it comes into operation through publication in the Government Gazette pursuant to ss 36 and 37 of the Planning and Environment Act.
The plaintiffs further submitted that special condition 4 only applies to the approval part of the process and that, by reason of special condition 4, settlement was to occur after the rezoning was approved. If there was some delay in settlement such that publication in the Government Gazette occurred prior to settlement, such that the vendor was exposed to windfall gains tax, clause 6 of the terms of settlement would render the second plaintiff, but not the first plaintiff, liable to compensate the vendor for that loss.
I make no findings in respect of the construction of relevant provisions of the Planning and Environment Act, but I do accept that if this argument were ultimately accepted, it strengthens the case advanced by the plaintiffs. It is sufficient for the purposes of the appeal before me simply to conclude that the interrelationship between the terms of settlement and the contract creates a controversy that ought be determined at trial.
I am of the view that the error as alleged in ground four is made out. The plaintiffs have a ‘real’ as opposed to a ‘fanciful’ chance of success in respect of their argument that clause 6 of the terms of settlement contained a warranty given by the second plaintiff, in its capacity as nominee, rather than operating as an amendment to the contract of sale.
It is unnecessary to deal with ground 5, which in any event, substantially overlaps with ground 4.
Grounds 6, 7 and 8
Grounds 6-8 were argued together.
In respect of ground 6, the plaintiffs essentially submitted that the commercial purpose of the contract could not simply be dealt with by concluding, as her Honour did in paragraph [96], that the purpose of the contract of sale was for the vendor to sell the property and the purchaser or its nominee to purchase the property.
In respect of ground 7, the plaintiffs submitted that the associate judge’s perception that the plaintiffs’ construction could have locked the defendant into an indefinite bargain was erroneous. In circumstances where a condition precedent to settlement has not been fulfilled by the date for completion, the courts will read the contract as imposing a reasonable time for the satisfaction of the condition and the completion of the conveyance.
In respect of ground 8, the plaintiffs submitted that the associate judge erred in finding that no term should be implied in the contract of sale to the effect that settlement under the contract was not required until after rezoning. If special condition 4 gave rise to a condition precedent, it would be necessary to imply a term to the effect that settlement occur a reasonable time after the approval of the rezoning and subdivision.
The arguments advanced here, to some extent, relied on isolated paragraphs of the reasons of her Honour, whereas a reading of the entirety of the judgment of her Honour demonstrates a much deeper analysis of matters such as the commercial purpose. But, in any event, the matters raised pursuant to these three grounds do not take the matter a great deal further than the arguments raised under ground 1. As such, it is unnecessary for me to deal with these grounds separately, except in respect of the following.
The overarching submissions of the vendor were that, even if the construction arguments of the plaintiffs were found to be arguable, it makes no difference to the outcome of this proceeding because the contract of sale had a date fixed for completion of the sale.
The vendor submitted that:
(a) the contract could not be construed in a way that the parties had to wait for approval of rezoning because the rezoning process, and therefore the date for settlement, could take months or even years (and rezoning approval may not be granted at all), thereby depriving the parties of certainty – and this is in a context of time being of the essence;
(b) the only way to construe the contract was to construe it as having a date fixed for completion of the sale;
(c) such date then became the date for determining whether the condition (if found to exist) had been fulfilled or not;
(d) 16 months was a long settlement period and gave sufficient time to allow the purchasers to benefit from special condition 4;
(e) the plaintiffs’ submission that a reasonable time to comply with the condition should be implied should be rejected because a reasonable time to comply with the condition is only to be implied where no date for completion of the sale is fixed.
Two cases, in particular, were relied on by the vendor. The first was Perri v Coolangatta Investments Pty Ltd,[18] in which the High Court (relying on Aberfoyle Plantations Ltd v Khaw Bian Cheng[19]) recognised that where a special condition did not fix any time within which a condition was to be completed, the condition must be fulfilled within a reasonable time.[20]
[18](1982) 149 CLR 537.
[19][1960] AC 115, 124.
[20]Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537, 543.
The second was Australian Mutual Provident Society v Landsa Ltd,[21] in which the Full Court of the Supreme Court of Victoria recognised that where a conditional contract has a date fixed for completion of the sale, in the absence of any other provision to the contrary, that date will be the date for determining whether the condition has been fulfilled or not, and must be strictly adhered to.
[21][1997] 1 VR 564.
The plaintiffs relied on Hera Project Pty Ltd v Bisognin (No 3)[22] (‘Hera’) in support of their submission that, in circumstances where a condition precedent to settlement has not been fulfilled by the date for completion, the courts will read the contract as imposing a reasonable time for the satisfaction of the condition and the completion of the conveyance.
[22][2017] VSC 268 (Riordan J).
In Hera, a purchaser sought an injunction restraining vendors from exercising a power of termination under a contract for the sale of land. Riordan J held that there was a breach of an obligation by a vendor to use their best endeavours to do all things necessary for the purpose of registering a plan of subdivision (and to comply with court orders), such as to deprive the purchaser of a substantial chance of a plan of subdivision being registered by a specified date. In those circumstances, a special condition setting a date by which the parties may end the contract of sale ‘transforms into a term requiring performance within a reasonable time.’[23]
[23]Hera Project Pty Ltd v Bisognin (No 3) [2017] VSC 268, [143] (Riordan J).
The facts of the case before me differ somewhat from the facts of Hera. Also, the reasoning of Riordan J relied heavily upon the principle that ‘a person cannot take advantage of the existence of a state of things that he has produced himself.’[24] But I am not prepared to conclude that the law is so clear that this point ought stand in the way of this matter proceeding to trial, so that the factual and legal issues can be fully ventilated.
[24]Ibid, [105].
Conclusion
The submissions by both the plaintiffs and the vendor were of a high quality, and there was a legal and factual basis standing behind each of the contentions advanced.
However, ultimately I accept the submissions of the plaintiffs that it is a significant thing to foreclose a plaintiff from pursuing a commercial claim to trial on the basis that the claim has no reasonable prospects of success.
For the reasons articulated, I am satisfied that error has been established and that this is not a case in which there should be summary judgment in favour of the vendor.
The appeal will be allowed. I will hear the parties on the appropriate form of orders and as to costs.
SCHEDULE OF PARTIES
S ECI 2024 02100
BETWEEN:
| ANGAD TRANS PTY LTD (ACN 633 888 221) as trustee for THE ANGAD FAMILY TRUST | First Plaintiff |
| 240 O’HERNS ROAD EPPING PTY LTD (ACN 669 228 475) | Second Plaintiff |
| - v - | |
| ROSANNA CHIARELLI, SONIA DANISTER and DAVID CHIARELLI as administrators of the estate of MARINO CHIARELLI (deceased) | Defendant |
and BETWEEN:
| ROSANNA CHIARELLI, SONIA DANISTER and DAVID CHIARELLI as administrators of the estate of MARINO CHIARELLI (deceased) | Plaintiff by Counterclaim |
| - v - | |
| ANGAD TRANS PTY LTD (ACN 633 888 221) as trustee for THE ANGAD FAMILY TRUST | First Defendant by Counterclaim |
| 240 O’HERNS ROAD EPPING PTY LTD (ACN 669 228 475) | Second Defendant by Counterclaim |
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