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 |
---
| 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) |
---
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.
---
| 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…
Keep reading for free
Create a free CaseChat account to read Carbon Black Lab Pty Ltd v Launer and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2015] VSCA 126
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.