Beaconsfield Property P/L v Wadhawan Beaconsfield P/L

[2012] VCC 464

Revised
IN THE COUNTY COURT OF VICTORIA	Not Restricted

AT MELBOURNE

CIVIL DIVISION

COMMERCIAL LIST
EXPEDITED CASES DIVISION

Case No. CI-12-01150

BEACONSFIELD PROPERTY PTY LTD (ACN 154 808 983) & ORS (ACCORDING TO THE SCHEDULE ATTACHED)	Plaintiffs and Defendants by Counterclaim
v
WADHAWAN BEACONSFIELD PTY LTD (ACN 133 774 286) & ORS (ACCORDING TO THE SCHEDULE ATTACHED)	Defendants and Plaintiffs by Counterclaim

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JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2012
DATE OF RULING:	26 April 2012
CASE MAY BE CITED AS:	Beaconsfield Property P/L & Ors  v  Wadhawan Beaconsfield P/L & Ors
MEDIUM NEUTRAL CITATION:	[2012] VCC 464

REASONS FOR RULING

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Catchwords: Practice and Procedure – application to vacate hearing of preliminary questions- application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. Lucas	GPZ Legal
For the Defendants	Mr J. J. Gleeson SC Mr R. G. Craig	Holding Redlich

HER HONOUR:

1 The plaintiffs have today applied to vacate the hearing of certain questions that I set down for preliminary determination pursuant to rule 47.04 of the County Court Civil Procedure Rules2008 (Vic).

2       This proceeding concerns a series of contracts for the sale of properties entered into in December 2011, in an amount of some $50 million. The plaintiffs lodged caveats as purchasers under these contracts. However, following the dishonour of deposit cheques proffered by the plaintiffs, the defendant vendors sought to terminate these contracts. 

3 Despite such termination, the plaintiffs issued this proceeding on 14 March 2012 following the service of notices from the Registrar of Titles pursuant to s.89A(3) of the Transfer of Land Act 1958 (Vic) on 23 February 2012. The plaintiffs seek orders for specific performance, and further seek declaratory relief that they hold an interest as purchasers sufficient to support their caveats.

4 On 2 April 2012, I made orders transferring this proceeding to the Expedited Cases Division of the Commercial List and setting it down for trial on 21 May 2012. However, the defendants subsequently issued a summons seeking the removal of the caveats and/or the provision of security under s90(3). By order of 18 April 2012, I therefore listed a series of questions for urgent determination on 23 April 2012, which course was consented to by both parties.[1] This was subsequently altered to today's date.

Basis for Application

[1]  The questions were:

5       Counsel for the plaintiffs, Mr Lucas, clarified that there were two primary bases for the application: firstly and primarily, that the plaintiffs had underestimated the time they needed to prepare this case and that, in particular, they sought an opportunity to proof various third party witnesses in relation to their claim for relief against forfeiture (with consequential amendments to the pleadings); secondly, that they had revisited the desirability of listing the separate questions for preliminary determination.

Opposition

6       Mr Gleeson SC, who appeared with Mr Craig for the defendants, raised three matters in opposition: firstly, that the court should be cautious before it accepted what the plaintiffs said as to their readiness for the trial today (Mr Gleeson highlighted various inaccuracies in the material and also matters that appeared to be contrary to some objective evidence in the court book); secondly, that there was no utility in a vacation of the hearing today as the matters put cannot provide a basis for relief against forfeiture;  further, the plaintiffs were clearly not ready, willing and able to proceed.  A third matter was that there would be a witness, Mr Mneimne, who would be unavailable on 21 May 2012.

Resolution

7       In relation to the first matter, although the affidavit filed on behalf of the plaintiffs by Mr Nick Galatas today, was unsatisfactory and lacked clarity in many respects, I accept that he had underestimated the amount of time necessary to prepare for the hearing today.  Further, that, in his view, there is more time required than that permitted pursuant to the tight timetable I set on 18 April 2012.

8       The second “utility” submission was, however, of considerable force.  In relation to the relief against forfeiture point, Mr Gleeson took the court to a passage in the decision of Tanwar Enterprises Pty Limited v Cauchi and Others[2], which suggests that, at least where accident and mistake are not involved, it would be necessary for the plaintiffs to point to the conduct of the vendor as having in some significant respect caused or contributed to the breach of the essential time stipulation.

[2] (2003) 217 CLR 315 at 335 per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ.

9       Having reviewed the material to date, and particularly paragraphs 21 to 23 of the affidavit of Mr Galatas, the claim for relief appears to be based on  conduct occurring on and after 19 December 2011.  One might have considerable reservation as to how the conduct specified actually caused the non-payment of the deposit in each case where the cheques were apparently written previously on 16 December.

10      However, in my view it is inappropriate for me to deal with such a matter on a summary basis. Rather, it is important that the plaintiffs have an ample opportunity to put their case on an important matter such as relief against forfeiture.  I accept that, notwithstanding their earlier indication, they are not in a position to do so, and have also taken into account that I am to ultimately consider a fairly broad concept, namely, that of “unconscientiousness” in resolving this issue.

11      In terms of “ready, willing and able to proceed”, it is true that on the material before me there does not appear to be sufficient evidence to establish that the plaintiffs are ready, willing and able to proceed.  I refer in particular to the omission in Mr Stathopoulos’ affidavit of 18 April 2012[3], and also paragraph 27 of Mr Galatas' affidavit which suggests that the plaintiffs may not be ready until June.  Moreover, as Mr Gleeson highlighted, there appears to be nothing to suggest that the plaintiffs are ready, willing and able to proceed in relation to the One Melbourne contract, at least on the material in front of me.

[3] Wherein he fails to confirm the accuracy of paras 48-51 of the Statement of Claim as to the purchasers being ready willing and able to proceed.

12      Again, however, the essence of the plaintiffs’ application before me was that they have not had sufficient time to prepare fully within the parameters of the very short timetable set. In those circumstances, the matter is not so clear that I should force the plaintiffs on today in the absence of detailed examination and cross-examination. This is particularly so, given that the court is in a position to offer a full hearing on the merits in a very short time frame on 21 May 2012.  

13      The last ground of opposition as to Mr  Mneimne was not pursued strongly.  Thus, Mr Gleeson did not suggest that the 21 May date needed to be vacated (it was not even clear that the witness would be necessary).  The defendants should also have taken this matter into account when the trial was listed on 21 May in any event.

14      There are other factors I have also taken into account, which I will briefly recite.  Firstly, I am aware that I am entitled to consider case management principles pursuant to Aon Risk Services Australian Limited v Australia National University[4]. However, as previously indicated, the court has already been able to accommodate the parties in listing the matter for a very early trial date on 21 May.

[4] (2009) 239 CLR 175

15 In terms of prejudice to the defendants, I have taken into account the defendants’ significant holding costs. However, the defendants have counterclaimed for damages, which matter can be considered on 21 May. A costs order is also likely to be appropriate ( which I will consider, shortly). I also propose to hear the defendants’ application under s90(3) immediately, and note that Mr George Stathopoulos is prepared to give the usual undertaking as to damages personally, if the caveats are to be retained until 21 May.

16      In all the circumstances then, and notwithstanding some serious reservations on the material before me, particularly as to the plaintiffs' readiness, willingness and ability to proceed, I will vacate the hearing today in order to give the plaintiffs the opportunity to properly present their case.  I will also confirm the trial date of 21 May 2012.

17 (Her Honour then proceeded to hear the defendants’ application under s90(3) of the Transfer of Land Act 1958)

SCHEDULE

BEACONSFIELD PROPERTY PTY LTD (ACN 154 808 983)	First Plaintiff/ First Defendant by Counterclaim
THALASSA PROPERTY DIVISION PTY LTD (ACN 127 922 883)	Second Plaintiff/ Second Defendant by Counterclaim
OZONE PROPERTY HOLDINGS PTY LTD (ACN 149 728 763)	Third Plaintiff/ Third Defendant by Counterclaim
DARLING ST PROPERTY (VIC) PTY LTD (ACN 154 808 974)	Fourth Plaintiff/ Fourth Defendant by Counterclaim
GEORGE STATHOPOULOS	Fifth Defendant by Counterclaim
v
WADHAWAN BEACONSFIELD PTY LTD (ACN 133 774 286)	First Defendant/ First Plaintiff by Counterclaim
WADHAWAN 248 CITY ROAD PTY LTD (ACN 133 561 734)	Second Defendant/ Second Plaintiff by Counterclaim
WADHAWAN HOLDINGS PTY LTD (ACN 130 832 174)	Third Defendant/ Third Defendant by Counterclaim
WADHAWAN REALTY PTY LTD (ACN 133 759 156)	Fourth Defendant/ Fourth Plaintiff by Counterclaim

a) were each of the contracts of sale the subject of the proceeding validly terminated?

b) are any of the Plaintiffs entitled on the pleaded case to specific performance and/or relief against forfeiture?
c) if the answer to 1(a) and 1(b) is yes, ought the Plaintiffs be granted specific performance or relief against forfeiture of the contracts of sale?
d) what orders ought to be made in relation to the caveats, the subject of this proceeding, to give effect to the answers in 1(a) to 1(c)?