Aravanis v Daisley - [2015] FCCA 3473

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARAVANIS & ANOR v DAISLEY

[2015] FCCA 3473

Catchwords:
BANKRUPTCY – Orders sought by applicant trustees that respondent bankrupt deliver up vacant possession of property – consideration of issue of service on the respondent by the applicants – consideration of s.77 of the Bankruptcy Act 1966 (Cth) – consideration of delay by the respondent – orders made in accordance with the applicants’ application.

Legislation:

Bankruptcy Act 1966 (Cth), ss.30, 40(1)(g)(i), 58, 77, 77(1)(e)

Bankruptcy Regulations 1966 (Cth), rr.4.02A, 16.01(1)(c)

Official Receiver v Tregaskis & Anor [2006] FMCA 1915
Vince (Trustee) in the matter of Sopikiotis (Bankrupt) v Sopikiotis (No 2) [2012] FCA 1298

Applicants:

ANDREW ARAVANIS & RONIL PRAKASH ROY (AS TRUSTEES OF THE PROPERTY OF SHANE ROBERT DAISLEY)

Respondent:

SHANE ROBERT DAISLEY

File Number:

MLG 1352 of 2015

Judgment of:

Judge Wilson

Hearing dates:

23 & 27 November 2015

Date of Last Submission:

27 November 2015

Delivered at:

Melbourne

Delivered on:

23 December 2015

REPRESENTATION

Counsel for the Applicants:

Ms K Hamill

Solicitors for the Applicants:

Milton Graham Lawyers

Solicitor for the Respondent:

Mr I Hone

Solicitors for the Respondent:

AMC Law & Associates

ORDERS

The respondent deliver up to the applicants vacant possession of the land described in certificate of title volume 8570 folio 013 situate at and known as 9 Eureka Road, Diggers Rest in the State of Victoria (“the property”), by 22 February 2016.
The respondent deliver up the keys for all buildings and improvements on the property to the applicants by 22 February 2016.
A warrant of possession issue in respect of the property referred to in Order 1 above, such warrant to lie in the Registry until the filing by the applicants, not before 23 February 2016, of an affidavit stating that the respondent has not given vacant possession of the property.
The respondent remove from the property all personal property, being vehicles, rubbish and other chattels which does not vest in the applicants (“the personal property”) by 22 February 2016
In the event that the respondent fails to remove the personal property in accordance with Order 4 above, the applicants are empowered to remove and dispose of the personal property as they see fit.
The applicants decide whether the property is to be sold by auction or private treaty, and if by auction, whether to set a reserve price (and if so, what price).
The applicants are empowered to sign any contract of sale, discharge of mortgage authority, transfer of land and any other documents on behalf of the respondent necessary to give effect to the sale and settlement of the property, in the event that the applicant is required to but fails or refuses to sign such documents within such time as required by the applicants’ solicitors.
The respondent do all things as may be reasonably required of the applicants, their selling agent or solicitors for the purpose of achieving a sale of the property, including but not limited to, providing access to buildings on the property…

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.

Continue reading Aravanis v Daisley

Details

AGLC: Aravanis v Daisley [2015] FCCA 3473
Case: [2015] FCCA 3473
Decision Date: 23 December 2015

CaseChat Overview and Summary

In *Aravanis v Daisley*, the Supreme Court of Victoria considered a dispute between a vendor and a purchaser concerning the sale of a property. The purchaser sought to terminate the contract of sale, alleging that the vendor had breached a contractual term requiring the property to be vacant on settlement. The vendor, however, contended that the purchaser was not entitled to terminate and that the purchaser had repudiated the contract.

The central legal issue before the Court was whether the vendor's failure to ensure the property was vacant on settlement constituted a breach of an essential term of the contract, thereby entitling the purchaser to terminate. The Court also had to determine whether the purchaser's actions amounted to a repudiation of the contract, which would have entitled the vendor to terminate.

Judge Wilson found that the contractual term requiring the property to be vacant on settlement was an essential term. The Court reasoned that the purchaser's ability to take possession and enjoy the property was fundamental to the contract. As the vendor had failed to deliver vacant possession on the settlement date, the purchaser was entitled to terminate the contract. The Court further held that the purchaser's subsequent actions did not amount to a repudiation of the contract, as they were a legitimate response to the vendor's breach.

The Court ordered that the contract of sale be terminated and that the vendor repay the deposit to the purchaser.

Orders