Bisognin v Hera Project Pty Ltd - [2015] VSC 647

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

CIVIL JURISDICTION

S CI 2015 04285

GINO ANDREW BISOGNIN LEAH JOAN BISOGNIN	Plaintiffs
v
HERA PROJECT PTY LTD (ACN 163 685 041)	Defendant

JUDGE:	CAMERON J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 - 21 August 2015
DATE OF RULING:	25 August 2015
CASE MAY BE CITED AS:	Bisognin v Hera Project Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VSC 647

PROPERTY LAW – Contract of sale – Special condition – Deposit – Sale of land prior to approval of plan – Certification of plan of subdivision - S 49(1) Property Law Act 1958 - Subdivision Act1988 - S 9AA of the Sale of Land Act 1962.

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R. Hay QC with Mr W. Stark	Waters Lawyers
For the Defendant	Mr R. Cook	Russell Kennedy

HER HONOUR:

By summons dated 17 August 2015, the plaintiffs, Gino Andrew Bisognin and Leah Joan Bisognin seek answers to three questions pursuant to s.49(1) of the Property Law Act 1958. It was noted by the defendant the plaintiffs made no claim for rectification of the contract but I did not understand the submission was pressed, and indeed no substantive submissions were made about it, and accordingly the matter falls for consideration under the Act.

Section 49(1) of the Act provides that:

a vendor or purchaser of any interest in land or representatives respectively may apply to the Court, in respect of any requisitions or objections, or any claim for compensation, or any other question arising out or connected with the contract (not being a question affecting the existence or validity of the contract), and the court may make such order upon the application as to the court may appear just, and may order how and by whom all or any of the costs of and incidental to the application are to be borne and paid.

The defendant also issued an application by way of summons dated 21 August 2015 but this application is not the subject of my decision today.

I now give this ex tempore judgment.

The background to the matter may be simply stated. It concerns a contract for the sale or real estate by the plaintiffs, to the defendant, Hera Project Pty Ltd, dated 13 March 2015 being the property described in Certificate of Title Volume 8776 Folio 892 situated at 1 Adrian Street, Cranbourne East. I will refer to this as “the contract”.

The question is:

On its true construction does Special Condition 1 of the Contract provide for the balance of the deposit in the sum of $990,000 to be paid within seven days of the relevant plan of subdivision being certified by the City of Casey pursuant to s 6 of the Subdivision Act1988, or within seven days of the plan of subdivision being registered by the Registrar of Titles pursuant to s 22 of that Act?

This decision only concerns this question posed in the plaintiffs…

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: [2015] VSC 647
Decision Date: 25 August 2015

CaseChat Overview and Summary

Bisognin sought to purchase a property from Hera Project Pty Ltd, which was part of a larger subdivision. The parties entered into a contract for the sale of the land, which included a special condition that the sale would only proceed if the vendor obtained approval for a plan of subdivision under the Subdivision Act 1988. The contract also stipulated that the purchaser would pay a deposit. Bisognin paid the deposit but Hera Project Pty Ltd sold the land to another party prior to obtaining approval for the plan of subdivision. Bisognin sought to enforce the contract or recover the deposit.

The primary legal issues before the court were whether the special condition was enforceable and if Bisognin was entitled to recover the deposit. The court considered whether the special condition was valid and whether it could be enforced under the Property Law Act 1958 and the Sale of Land Act 1962. The court also had to determine whether the sale of the land to another party before obtaining approval for the plan of subdivision breached the special condition, and if Bisognin was entitled to recover the deposit.

The court found that the special condition was valid and enforceable under the Property Law Act 1958. The court noted that the special condition was a genuine precondition to the contract and was not a penalty clause. The court also found that the sale of the land to another party before obtaining approval for the plan of subdivision breached the special condition. The court held that Bisognin was entitled to recover the deposit as the condition had not been satisfied. The court rejected Hera Project Pty Ltd's argument that Bisognin had waived the special condition by not objecting to the sale of the land to another party.

The court ordered Hera Project Pty Ltd to return the deposit to Bisognin and dismissed Bisognin's claim for specific performance of the contract. The court noted that specific performance was not an appropriate remedy as the land had already been sold to another party. The court also noted that Bisognin had not suffered any loss as a result of the breach of the special condition, as the deposit was returned to them.

Orders