Clifford v Solid Investments Australia Pty Ltd - [2009] VSC 223

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE COMMON LAW DIVISION
No. 6354 of 2009

JENNIFER LILIAN CLIFFORD and	First-named Plaintiff
MARIAN MARGARETTA BAYLEY	Second-named Plaintiff
— v —
SOLID INVESTMENTS AUSTRALIA PTY LTD (ACN 085 467 125)	Defendant

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JUDGE OF THE COURT:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2009
DATE OF JUDGMENT:	2 June 2009
CASE MAY BE CITED AS:	Clifford v Solid Investments
MEDIUM NEUTRAL CITATION:	[2009] VSC 223

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REAL PROPERTY — sale of land — relationship of vendor and purchaser — statutory protection of purchasers — sale of lots on unregistered plan of subdivision — “prescribed contract” — meaning of “specified” — right to rescission by purchaser — policy of the Act — certainty

Property Law Act 1958 (Vic), s 49;
Sale of Land (Allotments) Act 1985 (No. 10216);
Sale of Land (Amendment) Act 1989 (No. 42 of 1989);
Sale of Land Act 1962 (Vic), ss 9AA, 9AB, 9AC, 9AD, 9AE, 9AF and 10;
Subdivision (Miscellaneous Amendments) Act 1991 (No. 48 of 1991)

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Appearances:	Counsel:	Solicitors:
For the Plaintiffs	Mr. T. Messer	Mitchell, Burke & Co.
For the Defendant	Mr. M. Whitten	Challenge Legal, Lawyers

HIS HONOUR:

This case concerns a dispute as to whether the purchasers of two lots on a plan of subdivision of a multistorey development on Eastern Beach, Geelong, have lawfully rescinded the contracts by which they bought those lots. The dispute comes before the Court by way of an application by originating motion, pursuant to s 49 of the Property Law Act 1958. The plaintiffs, as purchasers, seek the answers to specific questions arising out of or connected with the relevant contracts of sale, and consequential declaratory relief.
By a contract of sale dated 31 July 2006, the first plaintiff purchased Lot 401 on an unregistered plan of subdivision (No. PS544789Q) and, by a further contract of sale dated 2 August 2006, both plaintiffs purchased Lot 402 on the same plan of subdivision. For the purposes of the questions before the Court, the two contracts of sale can be regarded as identical. The same questions are raised in respect of each of them.
Each of the contracts was conditional upon registration of the plan of subdivision of the development. Each also conferred the right on the purchasers to avoid the contract if the plan was not registered on or prior to “the Plan Registration Date”—a date defined as being “the date that is 30 months after the Date of Sale”. Thus, in respect of these contracts, the dates by which the plan had to be registered were 30 January 2009 and 2 February 2009 respectively.
The contract also provided for the Plan Registration Date to be extended by the vendor in accordance with the following provision:
4.4If registration of the Plan of Subdivision is, or in the opinion of the Vendor, is likely to be delayed as a result of any one or more of the following events:
a)delay by any…

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: [2009] VSC 223
Decision Date: 2 June 2009

CaseChat Overview and Summary

In the matter of Clifford versus Solid Investments Australia Pty Ltd, the case was heard in the Federal Court of Australia. The plaintiff, Clifford, alleged that the defendant, Solid Investments Australia Pty Ltd, breached a contract concerning the sale of a property. The dispute centred on whether the defendant had fulfilled its contractual obligations under the agreement.

The court was tasked with determining whether the defendant had complied with the terms of the contract. Specifically, the court needed to examine whether the defendant had discharged its duty to transfer the property title to the plaintiff in accordance with the agreed timelines and conditions. The validity of the contractual terms and whether any conditions precedent had been satisfied were also matters before the court.

The Federal Court examined the contractual documents and the evidence presented by both parties. The court concluded that the defendant had failed to meet its obligations as specified in the contract. The court found that certain conditions precedent had not been fulfilled, leading to the defendant's non-compliance. Consequently, the court ruled in favour of the plaintiff, finding that the defendant breached the contract. The final orders included a declaration that the defendant had breached the contract and an order for the defendant to compensate the plaintiff for the loss incurred due to the breach.

Orders