Angad Trans Pty Ltd v Marino Chiarelli - [2024] VSC 622

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2024 02100

BETWEEN:

ANGAD TRANS PTY LTD (ACN 633 888 221) ATF ANGAD FAMILY TRUST & ANOR (according to the attached Schedule)	Plaintiffs
and
MARINO CHIARELLI	Defendant

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JUDGE	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2024
DATE OF RULING:	10 October 2024 (Revised)
CASE MAY BE CITED AS:	Angad Trans Pty Ltd v Marino Chiarelli
MEDIUM NEUTRAL CITATION:	[2024] VSC 622

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CONTRACT – Summary judgment application by vendor – Interpretation – Implied term – Condition precedent – Whether rezoning of property an implied term or condition precedent.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D Carlile Mr E Twomey	Banga Legal
For the Defendant	Mr T Sowden	Conlan Cummings Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The vendor’s summary judgment application............................................................................. 1

Summary.............................................................................................................................................. 1

Background......................................................................................................................................... 2

General Background..................................................................................................................... 2
The First Proceeding..................................................................................................................... 5
Road to this Proceeding............................................................................................................... 6
History of this Proceeding........................................................................................................... 8

Applicable Principles........................................................................................................................ 9

Is there any real prospect of the purchasers establishing that the rezoning of the property was a condition precedent to settlement?......................................................................................... 11

Purchasers’ submissions............................................................................................................ 12
Vendor’s submissions................................................................................................................. 15
Analysis........................................................................................................................................ 16

Is there any real prospect of the purchasers establishing the contract of sale contains an implied term that settlement is not required until after rezoning?................................................. 21

Purchasers’ submissions............................................................................................................ 22
Vendor’s submissions................................................................................................................. 23
Analysis........................................................................................................................................ 24

Should the matter proceed to trial per s 64 of the CPA?........................................................... 24

Conclusion......................................................................................................................................... 25

HER HONOUR

Introduction

This proceeding concerns a dispute about the purchase of land for $9.5 million. The plaintiff purchasers say that settlement should be delayed until after the land has been rezoned and, until that occurs, the land is only worth $5 million. They say they are in the process of having the land rezoned from Farming Zone to Comprehensive Development Zone or Urban Growth Zone. In the meantime, an initial settlement date, and then an extended settlement date, have passed without the purchasers completing payment of the purchase price. The defendant vendor relies on the contract of sale, as amended by the terms of settlement (‘TOS’), and says there should be summary judgment in his favour. This ruling determines the defendant vendor’s summary judgment application.

For convenience, I shall refer to the plaintiffs as ‘the purchasers’ and the defendant as the ‘vendor’.

The vendor’s summary judgment application

By summons filed on 6 June 2024, the vendor seeks summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’). In the alternative, he seeks that the Statement of Claim filed on 1 May 2024 (‘Statement of Claim’) be struck out pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’). By his counterclaim, the vendor seeks orders that the second plaintiff remove a caveat over the subject property.

Summary

The central questions for determination and their answers follow.

Do the purchasers have any real prospect of success in establishing:

(a) the rezoning of the property was a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] VSC 622
Decision Date: 10 October 2024

CaseChat Overview and Summary

Angad Trans Pty Ltd sought summary judgment against Marino Chiarelli, their former business partner, for the recovery of $660,000 owed under a settlement agreement. The dispute arose from a business partnership involving property development, where Angad Trans claimed that the settlement agreement was binding and enforceable. The court was required to determine whether the settlement agreement's terms regarding the property's rezoning were an implied term or a condition precedent.

The central legal issue was whether the obligation to rezone the property was an implied term or a condition precedent to the enforcement of the settlement agreement. Angad Trans argued that the settlement agreement was clear and unambiguous, and that the obligation to rezone was an implied term. Chiarelli contended that the obligation to rezone was a condition precedent and had not been met, rendering the agreement unenforceable.

The court found that the settlement agreement was not ambiguous and that the obligation to rezone the property was an implied term, not a condition precedent. The court held that the parties' conduct, including their written communications and actions, supported the conclusion that the obligation to rezone was an implied term. The court further determined that the obligation to rezone was not a condition precedent because it did not need to be fulfilled before the agreement became binding. Instead, the obligation to rezone was a concurrent obligation that arose alongside the other terms of the settlement agreement.

Angad Trans was granted summary judgment in the amount of $660,000 plus interest and costs. The court ruled that the settlement agreement was clear and unambiguous, and that the obligation to rezone the property was an implied term that did not need to be fulfilled before the agreement became binding. The court found that Chiarelli was liable for the full amount owed under the settlement agreement.

Orders