Bisognin v Hera Project Pty Ltd - [2016] VSCA 322

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0117

GINO ANDREW BISOGNIN

and

LEAH JOAN BISOGNIN

Applicants

HERA PROJECT PTY LTD (ACN 163 685 041)

Respondent

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JUDGES:	SANTAMARIA and FERGUSON JJA, RIORDAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 November 2016
DATE OF JUDGMENT:	16 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 322
JUDGMENT APPEALED FROM:	Bisognin v Hera Project Pty Ltd [2016] VSC 75 (Sloss J)

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CONTRACTS – Contract for sale of land – Applicants received unsolicited approach from developer seeking to purchase a portion of their land – Special conditions included obligation that the purchaser at its own cost and expense prepare a plan of subdivision and use its best endeavours and do all things reasonably required to expedite and procure registration of plan – Further special condition added stating that if plan of subdivision not registered by 25 August 2015 either party may terminate contract – Pre-requisite for approval of plan was entry into agreements with service suppliers – Agreements included financial obligations – Dispute as to which party obliged to pay – Effect of special conditions to shift risk of registration and associated financial obligations from vendor to the purchaser – Sale of Land Act 1962 – Subdivision Act 1988 Part 2, Part 4 – Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 – Royal Botanical Gardens and Domain Trust v South SydneyCity Council (2002) 240 CLR 45.

PRACTICE AND PROCEDURE – Application to set aside Judicial Registrar’s orders extending time to file application for leave to appeal – Court will not extend time if appeal so devoid of merit it would be futile to do so – Court will consider length of delay, reasons for delay and extent of any prejudice suffered by respondent if extension granted – Applicants had adequately explained reasons for delay – Appeal had substantive merits – Failure to extend time would lead to unjust outcome – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the applicants	Mr J Ribbands with Mr W Stark	T F Grundy
For the respondent	Mr N Pane QC with Mr J Whelen	Russell Kennedy Solicitors

SANTAMARIA JA
FERGUSON JA
RIORDAN AJA:

Introduction

Gino Andrew Bisognin and Leah Joan Bisognin (‘the applicants’) are the joint owners of a rural block at Cranbourne. In 2012, they received an unsolicited approach on behalf of a developer who was seeking to buy the southern portion of their land. The developer told the applicants that he proposed to develop the southern portion of their land by the construction of a supermarket. He said he had already discussed the matter with the local municipality. In 2012, the parties entered an agreement for the sale and purchase of a plot on the unregistered plan of subdivision. Subsequently, Hera Project Pty Ltd (‘the respondent’) was nominated as the ‘purchaser.’ The contract was in standard form save that it contained a number of special conditions relating to the preparation and eventual…

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: [2016] VSCA 322
Decision Date: 16 December 2016

CaseChat Overview and Summary

Bisognin v Hera Project Pty Ltd involved a dispute between the applicants, Bisognin, and the respondent, Hera Project Pty Ltd, regarding a contract for the sale of land. The Bisognins entered into a contract with Hera for the sale of a portion of their land, which included special conditions that obligated Hera to prepare a plan of subdivision and expedite its registration. One condition stipulated that if the plan was not registered by 25 August 2015, either party could terminate the contract. A further condition required Hera to enter into agreements with service suppliers, which included financial obligations. The dispute centred on which party was responsible for these financial obligations.

The primary legal issues for the court to decide were the effect of the special conditions in the contract, specifically whether they shifted the risk of registration and associated financial obligations from the Bisognins to Hera. The court also had to consider whether the applicants' appeal against the Judicial Registrar's orders extending the time to file an application for leave to appeal was devoid of merit. The applicants argued that the appeal had substantive merits and that not extending the time would lead to an unjust outcome.

The court held that the special conditions did indeed shift the risk of registration and associated financial obligations to Hera. The court noted that the Bisognins had adequately explained the reasons for the delay in filing the application for leave to appeal and that the appeal had substantive merits. Given these factors, the court found that the Judicial Registrar's decision to extend the time was appropriate, and the application to set aside the orders was dismissed.

Orders