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Carbon Black Lab Pty Ltd v Launer

Carbon Black Lab Pty Ltd v Launer

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Case Copied 29 May 2015 36 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0144

CARBON BLACK LAB PTY LTD	Applicant
(ACN 140 192 730)
v
DARRYL LAUNER	Respondent

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JUDGES:	SANTAMARIA, FERGUSON and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 May 2015
DATE OF JUDGMENT:	29 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 126
JUDGMENT APPEALED FROM:	Launer v Carbon Black Lab PtyLtd (Unreported, Supreme Court of Victoria, 6 November 2014) (Digby J)

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REAL PROPERTY – Caveat – Application to remove caveat under Transfer of Land Act 1958, s 90(3) – Caveat protected applicant’s interest as purchaser of land – Applicant said to have breached essential term of contract of sale of land by failing to settle purchase – Where respondent entered into contract to sell property to third party after purporting to rescind contract with applicant – Whether in ordering removal of caveat trial judge correctly applied Transfer of Land Act 1958, s 90(3) – Piroshenko v Grojsman (2010) 27 VR 489, considered – Whether balance of convenience favoured removal of caveat – Leave to appeal granted – Appeal dismissed.

CONTRACT – Contract for sale of land where time provided to be of the essence – Applicant said to have failed to settle on time – Where respondent agreed to indefinite extension of time – Where respondent said to have made time once again of the essence by subsequent service of notice of default and rescission – Whether trial judge erred in finding it likely that contract validly terminated following service of notice – Estate Agents (Contracts) Regulations 2008, Form 2, General Conditions 27, 28, considered – Mehmet v Benson (1965) 113 CLR 295; Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286; Thornton v Bassett [1975] VR 407, applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S R Horgan QC with Mr J Kohn	Noble Lawyers
For the Respondent	Mr T North QC with	Fitzpatrick Legal
Mr A Herskope

SANTAMARIA JA
FERGUSON JA
McLEISH JA:

This is an application for leave to appeal, and if leave is granted an appeal, from a decision of a judge of the trial division granting an application under s 90(3) of the Transfer of Land Act 1958 for the removal of a caveat. For the reasons that follow, we would grant leave to appeal, and dismiss the appeal.

By contract of sale dated 17 July 2013, the applicant agreed to purchase from the respondent a property referred to as Crown Allotment 136K, Parish of Illawarra, more particularly described in Certificate of Title Volume 10294 Folio 536 (‘lot 136K’), for the sum of $550,000. The caveat in issue in these proceedings protects the applicant’s interest as purchaser. The respondent contends that, in the events that have happened, the contract is at an end.

On the same day that the applicant agreed to purchase lot 136K, Zackary Pty Ltd, a company with a connection to the respondent, entered into a contract for sale of the neighbouring…

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] VSCA 126
Decision Date: 29 May 2015

CaseChat Overview and Summary

Carbon Black Lab Pty Ltd sought to remove a caveat entered by Launer, over a property which Carbon Black had contracted to purchase. Launer claimed that Carbon Black had breached the contract by failing to settle the purchase, and had therefore purported to rescind the contract and enter into a new contract with a third party. Carbon Black applied to the Supreme Court of Victoria to remove the caveat on the basis that Launer's interest was not protected by the caveat. The primary legal issue was whether the trial judge correctly applied the relevant provisions of the Transfer of Land Act 1958, and whether the balance of convenience favoured the removal of the caveat. The court considered the application of the Piroshenko v Grojsman decision and the relevant provisions of the Transfer of Land Act 1958, s 90(3).

The court found that the trial judge correctly applied the provisions of the Transfer of Land Act 1958, s 90(3) in ordering the removal of the caveat. The court held that Launer's interest was not protected by the caveat as it was not a real or substantial interest in the land, and that the balance of convenience favoured the removal of the caveat. The court further held that the trial judge did not err in finding it likely that the contract had validly terminated following the service of the notice of default and rescission, in accordance with the Estate Agents (Contracts) Regulations 2008, Form 2, General Conditions 27, 28. The court found that the trial judge had applied the correct legal principles in reaching this conclusion, and had considered all relevant factors in determining the balance of convenience.

Leave to appeal was granted, however the appeal was ultimately dismissed. The court found that the trial judge had correctly applied the relevant legal principles and had not erred in his findings of fact. The court held that the balance of convenience favoured the removal of the caveat, and that Launer's interest was not protected by the caveat. The appeal was dismissed with costs.

Orders