Cityrose Trading Pty Ltd v Booth - [2013] VSC 504

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2011 01275

CITYROSE TRADING PTY LTD (ACN 077 934 671)	Applicant
v
NOEL BOOTH	First Respondent
and
KAY & BURTON PTY LTD (ACN 005 488 175)	Second Respondent

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	11-12 July 2013
DATE OF JUDGMENT:	19 September 2013
CASE MAY BE CITED AS:	Cityrose Trading Pty Ltd v Booth & anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 504

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CONTRACT — Appeal from the Victorian Civil and Administrative Tribunal on questions of law — Construction of a contract for the sale of residential property — Whether a special condition in the contract of sale bound the purchaser to pay the purchase price plus an additional amount for GST — Whether the language used in the special condition is so obscure and so incapable of any definite or precise meaning that the Court is unable to attribute to the parties any particular contractual intention — Whether the special condition can be severed — Special condition void for uncertainty and severable.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Clarke	Madgwicks
For the First Respondent	Mr M Flynn	Russell Kennedy
For the Second Respondent	Ms R Sofroniou	Colin Biggers & Paisley

HER HONOUR:

Introduction

This is an appeal from the decision of Lansdowne AsJ of 14 September 2012 refusing leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (the ‘Tribunal’) dated 23 February 2011.

The present appeal is by re‑hearing de novo of the application made to the Associate Judge. At the time her Honour refused leave to appeal, Rule 77.06(7) of the Supreme Court (General Civil Procedure) Rules 2005 provided as follows:

The appeal shall be by re-hearing de novo of the application to the Associate Judge but each party may, subject to any proper objections to admissibility —
(a)rely upon any affidavit used before the Associate Judge and upon any evidence given orally before the Associate Judge;
(b)by special leave of the Judge of the Court, rely upon an affidavit or oral evidence not used or given before the Associate Judge.

The appeal is therefore a complete re‑hearing. It falls to the Court to determine whether, under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (the ‘VCAT Act’), the applicant ought to be granted leave to appeal the Tribunal’s decision.

The principles for the grant of leave are well established.[1] The applicant must identify a question of law arising out of the Tribunal’s decision that is relevant to the relief sought on the appeal and must satisfy the Court that the Tribunal’s order is attended by sufficient doubt to justify the grant of leave.
[1]Department of Premier and Cabinet v Hulls [1999] 3 VR 331.

In this case, given the nature of the questions raised, as well as the long delay that has occurred since the Tribunal handed down its decision in…

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: [2013] VSC 504
Decision Date: 19 September 2013

CaseChat Overview and Summary

Cityrose Trading Pty Ltd, the appellant, brought an appeal against the decision of the respondent, Booth, which was made by the Victorian Civil and Administrative Tribunal. The dispute centred around the interpretation of a contract for the sale of residential property, specifically regarding a special condition that obligated the purchaser to pay the purchase price in addition to an amount for GST. The special condition in question was whether it bound the purchaser to pay the purchase price plus the additional amount for GST and if the language used in the special condition was so obscure and incapable of any definite or precise meaning that the court could not attribute to the parties any particular contractual intention. Furthermore, the court considered whether the special condition could be severed from the contract.

The primary legal issue before the court was to determine whether the special condition in the contract of sale was binding on the purchaser, requiring them to pay the purchase price plus an additional amount for GST. The court also had to decide if the language used in the special condition was so ambiguous and uncertain that it was impossible to attribute a definite or precise meaning to the parties' contractual intention. Additionally, the court examined whether the special condition could be severed from the contract if it was found to be void for uncertainty.

In reaching its decision, the court held that the language used in the special condition was indeed obscure and incapable of any definite or precise meaning. As a result, the court found that the special condition was void for uncertainty. However, the court determined that the special condition was severable from the rest of the contract. Consequently, the contract for the sale of the residential property would still be valid, and the purchaser would be bound by the remaining terms and conditions, excluding the special condition. The court further found that the contract was not entirely invalidated by the uncertainty of the special condition, and the remaining terms of the contract could still be enforced. The special condition was deemed severable, and the purchaser was not obligated to pay the additional amount for GST.

The final orders of the court were that the appeal by Cityrose Trading Pty Ltd was dismissed, and the decision of the Victorian Civil and Administrative Tribunal was upheld. The special condition in the contract of sale was found to be void for uncertainty and was severed from the contract. The purchaser was not bound to pay the additional amount for GST. The contract for the sale of the residential property remained valid and enforceable, excluding the special condition.

Orders