Besser v Alma Homes Pty Ltd - [2012] VSC 460

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. S CI 05294 of 2012

IN THE MATTER of an application in respect of s 9AC and s 9AF Sale of Land Act 1962 (Vic)
IN THE MATTER of an application under s 49 of the Property Law Act 1958 (Vic)

BELLA BESSER	Plaintiff
v
ALMA HOMES PTY LTD (ACN 123 681 363)	Defendant

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JUDGE:	PAGONE J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2012
DATE OF JUDGMENT:	5 October 2012
CASE MAY BE CITED AS:	Bella Besser v Alma Homes Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VSC 460

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SALE OF LAND – Amendment of plan of subdivision – Whether amendment of subdivision materially affected the lot – Whether purchaser entitled to rescind the contract – Whether purchaser entitled to repayment of deposit from vendor – Sale of Land Act 1962 (Vic) ss 9AC, 9AF.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Panna S.C.	Jessop and Komesaroff Pty
For the Defendant	Mr W Stark	Hassall’s Litigation Services

HIS HONOUR:

The plaintiff (“Ms Besser”) seeks a declaration that pursuant to s 9AC of the Sale of Land Act 1962 (Vic) she has validly rescinded a Contract of Sale between herself and the defendant (“Alma Homes”) on the grounds that Alma Homes has amended the plan of subdivision in a manner that will materially affect the lot she had agreed to purchase. Ms Besser also seeks a consequential order pursuant to s 9AF(1)(b) of the Sale of Land Act 1962 (Vic) for the repayment of the deposit of $125,000 which she had paid to Alma Homes pursuant to the Contract of Sale.

On 11 April 2011 Ms Besser and Alma Homes contracted for the sale of a property described as “Lot 4 on proposed plan of subdivision PS638257D”. The sale was an “off the plan” sale in respect of a property which was the subject of subdivision. The contract provided for a purchase price of $1,250,000 of which a deposit of $125,000 was paid on or about 11 April 2011. The contract for the sale was in the standard form and included a Vendor’s Statement given pursuant to s 32 of the Sale of Land Act 1962 (Vic) to which was attached, amongst other documents and information, a copy of the proposed plan of subdivision.

The document identified by Ms Besser as the plan of subdivision comprised of four pages. Each page bears the plan number PS638257D. The fourth page is headed “Owners Corporation Schedule” and identifies the lot entitlements and lot liabilities for each of the four lots in the plan. The second page contains drawings showing the location of the properties within the title boundaries and the area set aside as common property. The fourth page of the plan of subdivision stated that there was to be an equal 25 per cent entitlement and liability to each of the four lots (consisting of 100 each totalling 400).

On 21 August…

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: [2012] VSC 460
Decision Date: 5 October 2012

CaseChat Overview and Summary

In the case of Besser v Alma Homes Pty Ltd, the dispute arose between the plaintiff, Besser, and the defendant, Alma Homes Pty Ltd, over the sale of a residential property. The crux of the matter was whether an amendment to the subdivision plan materially affected the lot in question, leading to the plaintiff's entitlement to rescind the contract and seek a repayment of the deposit. The case was heard and determined in the Supreme Court of Victoria.

The legal issues central to this case involved the interpretation and application of sections 9AC and 9AF of the Sale of Land Act 1962 (Vic). Specifically, the court needed to decide whether the amendment to the subdivision plan constituted a material effect on the lot that would entitle the plaintiff to rescind the contract, and if so, whether this right of rescission included a claim for the repayment of the deposit. The court had to examine the legislative framework and the circumstances surrounding the amendment to ascertain whether the statutory conditions for rescission were satisfied.

The court meticulously reviewed the statutory provisions and the facts of the amendment to the subdivision plan. It determined that the amendment did not materially affect the lot in a way that would allow the plaintiff to rescind the contract under section 9AC of the Sale of Land Act 1962 (Vic). Consequently, the court held that the plaintiff was not entitled to either rescind the contract or seek a repayment of the deposit. The plaintiff's appeal was dismissed, and the orders of the trial judge were affirmed.

Orders