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Cahill v Kiversun Pty Ltd

Cahill v Kiversun Pty Ltd

Case [2017] VSC 641 29 November 2017

Contract Formation

Misrepresentation

Specific Performance

Unconscionable Conduct

Contract Law

Consumer Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S ECI 2016 01231

BETWEEN:
PETER JOSEPH CAHILL	Plaintiff
AND
KIVERSUN PTY LTD (ACN 006 035 570)	Defendant
S ECI 2016 01256
BETWEEN:
MOLONGLO GROUP (AUSTRALIA) PTY LTD (ACN 109 342 547)	Plaintiff
AND
PETER JOSEPH CAHILL	First Defendant
AND
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	Kennedy J
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 18, 19, 20, 23 and 30 October 2017
DATE OF JUDGMENT:	29 November 2017
CASE MAY BE CITED AS:	Cahill v Kiversun Pty Ltd; Molonglo Group (Australia) Pty Ltd v Cahill & Anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 641

CONTRACT – Vendor and purchaser – Whether binding agreement for the sale of land – validity of execution – Whether a conditional offer – Whether intention to be bound – Consideration – Construction of terms

CONTRACT – Whether vendor disentitled from relying on non-compliance with condition by reason of prevention principle

CONTRACT – Availability of specific performance – Appropriate form of order

TRADE AND COMMERCE – Australian Consumer Law – Whether representations made and/or whether misleading or deceptive – Whether reliance in any event

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In proceeding S ECI 2016 01231

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A P Rodbard-Bean	Aitken Partners
For the Defendant	Dr C G Button	Mills Oakley

In proceeding S ECI 2016 01256

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms T N Spencer Bruce	King & Wood Mallesons
For the First Defendant	Mr A P Rodbard-Bean	Aitken Partners

HER HONOUR:

These two proceedings concern a dispute regarding the purported sale of commercial land at 112 – 118 Rokeby Street in Collingwood (Rokeby Street Property) by a vendor, Kiversun Pty Ltd (Kiversun) to two separate purchasers: first to Mr Peter Cahill on 15 July 2016; and second to Molonglo Group (Australia) Pty Ltd (Molonglo) on 4 August 2016.

The two prospective purchasers claim that Kiversun is bound to sell the Rokeby Street Property to them in circumstances where Kiversun has purported to terminate the alleged contract with Mr Cahill. Both purchasers have also lodged caveats over the Rokeby Street Property.

In proceeding S ECI 2016 01231 relating to Mr Cahill’s claim (Cahill Proceeding), Mr Cahill seeks an order for specific performance of his agreement against Kiversun primarily relying on an ‘Agreement to Purchase’ document dated 15 July 2016 (Agreement to Purchase); alternatively, he seeks damages for alleged misrepresentations pursuant to Schedule 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) (alleging contraventions of ss 18 and 30) and/or specific performance of the Agreement to Purchase.

In proceeding S ECI 2016 01256 (Molonglo Proceeding), Molonglo seeks an order for the removal of Mr Cahill’s caveat,[1] while Mr Cahill in turn seeks an order (by Counterclaim) for the removal of the Molonglo caveat.[2]
[1]Such an application would ordinarily be determined on the basis of a prima facie case and balance of convenience: see

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 Cahill v Kiversun Pty Ltd

Details

AGLC: Cahill v Kiversun Pty Ltd; Molonglo Group (Australia) Pty Ltd v Cahill [2017] VSC 641
Case: [2017] VSC 641
Decision Date: 29 November 2017

CaseChat Overview and Summary

The matter involved Cahill, the appellant, and Kiversun Pty Ltd, the respondent. The dispute centred around a contract for the sale of land, with Cahill claiming that Kiversun had failed to comply with the conditions of the contract, while Kiversun argued that the contract was not binding due to non-compliance with certain terms. The case was heard in the Supreme Court of Victoria, Appeal Division.

The central legal issues revolved around the validity of the contract and whether it was binding on both parties. Specifically, the court had to determine if the offer made by Cahill was conditional and whether there was an intention to be bound upon acceptance. Additionally, the court needed to examine the consideration provided and the construction of the terms in the contract. Another issue was whether Kiversun was disentitled from relying on Cahill’s non-compliance due to the prevention principle. The court also had to consider the availability of specific performance as a remedy and the appropriate form of the order. Furthermore, the court needed to assess whether any representations made were misleading or deceptive under the Australian Consumer Law and whether Cahill had relied on these representations.

The court found that the contract was indeed binding, as it was evident that Cahill made a conditional offer with an intention to be bound. The consideration was deemed sufficient, and the terms of the contract were construed in light of the circumstances. The court held that Kiversun was not disentitled from relying on Cahill’s non-compliance with the conditions due to the prevention principle. Regarding the remedy, the court determined that specific performance was an appropriate order, given the unique nature of the property involved. The court concluded that no misleading or deceptive representations had been made, and Cahill’s reliance, if any, did not affect the outcome of the case.

The final orders of the court were that the contract for the sale of land was binding and enforceable. Specific performance was granted, requiring Cahill to complete the sale as per the terms of the contract. Kiversun was entitled to seek any additional remedies available under the contract or at law.

Orders