Bisognin v Hera Project Pty Ltd

[2018] VSCA 93

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0079

GINO ANDREW BISOGNIN and LEAH JOAN BISOGNIN	Applicants
v
HERA PROJECT PTY LTD (ACN 163 685 041)	Respondent

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JUDGES:	TATE, KYROU and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 August 2017
DATE OF JUDGMENT:	17 April 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 93
JUDGMENTS APPEALED FROM:	[2017] VSC 268 (Riordan J), [2017] VSC 383 (Riordan J) and [2017] VSC 439 (Riordan J)

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CONTRACT – Contract for sale of land – Specific performance – Whether purchaser ready, willing and able to perform its obligations – Best endeavours obligation to expedite and procure the registration of subdivision – Obligation to pay fees to referral authorities clarified as imposed on purchaser, not vendors, by earlier decision of the Court of Appeal – Failure by purchaser to pay fees to referral authorities, or deduct amount from final settlement, before decision of the Court of Appeal – Purchaser made relevant payments after decision of Court of Appeal – No obligation in circumstances to entertain alternative interpretation of contractual obligations – Relevance to delay of vendors’ misleading conduct that they could obtain finance – Bishop v Taylor (1968) 118 CLR 518, DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423, Joseph Street Pty Ltd v Tan (2012) 38 VR 241 applied – Appeal dismissed.

PROPERTY – Whether judge erred in granting the purchaser access to the land – Whether proposed development must be identified in the contract of sale – Sale of Land Act 1962 s 9AD(3).

COSTS – Whether judge erred in not attaching a security for costs condition on grant of specific performance – Whether judge erred in awarding costs on an indemnity basis – Effect of late production during trial of alternative contract inconsistent with the vendors’ obligations under contract of sale – Effect of vendors’ misleading conduct – Oshlack v Richmond River Council (1998) 193 CLR 72 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr J Ribbands with Mr W Stark and Mr L Wirth	T F Grundy Lawyers
For the Respondent	Mr N Pane QC with Mr J Whelen	Russell Kennedy

TATE JA:

TABLE OF CONTENTS

Introduction and summary .  ...................................................................	2
Grounds of appeal   ...................................................................................	3
Background – Protracted litigation from contract of sale of land ....	4
(1)   The 2015 Contract ........................................................................	5
(2)   Steps taken between March and August 2015  .............................	8
(3)   Hearings before Cameron J (Practice Court) and Sloss J — dispute over contractual obligations  ..........................................................	12
(4)   Steps taken after Sloss J judgment; appeal to the Court of Appeal (4 March 2016 to 16 December 2016)   .........................................	20
(5)   Steps taken after Court of Appeal judgment until the hearing before Riordan J (17 December 2016 to 28 March 2017) .........................	32
(6)   The hearings before Riordan J and his findings .............................	35
Ground 1: Did the judge find that, as at the commencement of the proceeding, Hera was ready, willing and able to…