Bonacci v Ruyten - [2000] VSC 138

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 5951 of 1999

ANTONIO BONACCI and FLAVIA FRANCESCA BONACCI	Plaintiffs
v
WILHELMINA RUYTEN	Defendant

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 7 and 10 April 2000
DATE OF JUDGMENT:	18 April 2000
CASE MAY BE CITED AS:	Bonacci & Anor v Ruyten
MEDIUM NEUTRAL CITATION:	[2000] VSC 138

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Sale of land – whether breach of requirements of s.32(2)(b) or (e) of Sale of Land Act 1962.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P. Norris	Russo Pellicano Carlei
For the Defendant	Mr P.N. Wikrama	Borchard & Moore Solicitors

HIS HONOUR:

On 4 May 1999, Antonio and Flavia Bonacci purchased a 2.7 hectare property situate in Stud Road, Rowville from Wilhemina Ruyten for $480,500 at auction. A contract of sale was signed and the purchasers made a $20,000 part payment of deposit.

According to the contract the balance of deposit of $28,050 was payable "immediately upon loan approval or a maximum of 30 days from the date hereof". It was common ground that the last possible date for that payment was 3 June. The residue was payable on 4 October 1999.

The plaintiffs did not pay the balance of deposit. They claim that they were entitled to and did rescind the contract. They say that such entitlement arose out of representations or warranties, broadly expressed, that the land was able to be subdivided; and by reason of defects in connection with the same matter in the statement which they were given under s.32 of the Sale of Land Act 1962, which statement was included in the contract.

The property which the plaintiffs bought was Lot 2 on a two lot plan of subdivision which was certified by the City of Knox on 19 April 1999. Certification followed upon an application made after the responsible authority issued a planning permit on 26 March 1999. That in turn followed the making and gazettal of a site specific amendment to the local section of the pertinent planning scheme (the Knox Planning Scheme). The amendment (L175) was gazetted on 28 January 1999 after a Council resolution of 15 December 1998 was approved by the Minister.

The land the subject of subdivision in April 1999 had a total area of about 5.4 hectares and was zoned Corridor A.

Clause 120-4 of the local section of the planning scheme provided that a permit was required to subdivide land zoned Corridor A; and that "each lot must be at least 12 hectares". That was not an absolute requirement – see clauses 120-4.1, 120-4.2, 120-4.3 and 120-4.4.

What might be called the 12 hectare prima facie position with respect to subdivision reflected the uses to which the land could be put as of right or with a permit. As of right uses included use for a detached dwelling if the site was at least 12 hectares, or met other criteria as to size. Uses that required a permit included use for a detached…

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.

Continue reading Bonacci v Ruyten

Details

AGLC: Bonacci v Ruyten [2000] VSC 138
Case: [2000] VSC 138
Decision Date: 18 April 2000

CaseChat Overview and Summary

In the case of Bonacci v Ruyten, the plaintiff sought a declaration from the court that there had been a breach of the requirements of either section 32(2)(b) or section 32(2)(e) of the Sale of Land Act 1962 by the defendant. The dispute arose out of the sale of a property and the subsequent discovery of a significant issue related to the title of the land. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the defendant's failure to disclose certain information amounted to a breach of section 32(2)(b) or section 32(2)(e) of the Sale of Land Act 1962. Section 32(2)(b) imposes a duty on the vendor to disclose to the purchaser any material facts that might affect the value of the property or the purchaser's decision to purchase. Section 32(2)(e) requires the vendor to disclose any material facts that might affect the purchaser's decision to purchase the property, including any matters that might affect the title of the land. The court needed to determine if the defendant's failure to disclose constituted a breach of either or both of these provisions.

The court examined the evidence presented and found that the defendant had indeed failed to disclose certain material facts that were relevant to the title of the land. The court held that this failure constituted a breach of section 32(2)(e) of the Sale of Land Act 1962, as the undisclosed information could have affected the plaintiff's decision to purchase the property. The court did not find it necessary to address the issue of whether there was also a breach of section 32(2)(b) as the breach of section 32(2)(e) alone was sufficient to warrant the relief sought by the plaintiff.

The court ordered that there had been a breach of section 32(2)(e) of the Sale of Land Act 1962 by the defendant, and the plaintiff was granted a declaration to that effect. The court further ordered that the defendant compensate the plaintiff for any loss or damage suffered as a result of the breach.

Orders