COBANOV -v- COBANOV [2002] WASC 257

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 257
Case No:	CIV:2446/2001	Heard:	25 SEPTEMBER 2002
Coram:	SCOTT J	Delivered:	7/11/02
No of pages:	11	Judgment Part:	1 of 1
Result:	Agreement not in breach of s 20(1)(a) of Town Planning & Development Act 1928
Category:	B
PDF Version

Parties:	STEVE COBANOV ANTHONY STEVE COBANOV
Catchwords:	Real property Town planning and development Contracts Vendor and purchaser tenants in common of land Contract for exclusive use of discrete portions of land Trial of preliminary issue Section 20(1)(a) Town Planning & Development Act 1928
Legislation:	Town Planning and Development Act 1928, s 20(1)(a)
Case References:	Boans v Kwinana Hub [1982] WAR 41 Caltex Properties Ltd (in liq) v Love, unreported; SCt of WA; Library No 970237; 14 May 1997 Giumelli v Giumelli (1996) 17 WAR 159 Lombardo v Development Underwriting [1971] WAR 188 Nelson v Nelson (1995) 184 CLR 538 Palamore Pty Ltd v Clode, unreported; SCt of WA (Murray J); Library No 980599; 16 October 1998 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : COBANOV -v- COBANOV [2002] WASC 257 CORAM : SCOTT J HEARD : 25 SEPTEMBER 2002 DELIVERED : 7 NOVEMBER 2002 FILE NO/S : CIV 2446 of 2001 BETWEEN : STEVE COBANOV

Plaintiff

AND

ANTHONY STEVE COBANOV

Defendant

Catchwords:

Real property - Town planning and development - Contracts - Vendor and purchaser tenants in common of land - Contract for exclusive use of discrete portions of land - Trial of preliminary issue - Section 20(1)(a) Town Planning & Development Act 1928

Legislation:

Town Planning and Development Act 1928, s 20(1)(a)

Result:

Agreement not in breach of s 20(1)(a) of Town Planning & Development Act 1928

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr P A Monaco

Defendant : Mr M S Barrett-Lennard

Solicitors:

Plaintiff : Godfrey Virtue & Co

Defendant : M S Barrett-Lennard & Co

Case(s) referred to in judgment(s):

Boans v Kwinana Hub [1982] WAR 41
Caltex Properties Ltd (in liq) v Love, unreported; SCt of WA; Library No 970237; 14 May 1997
Giumelli v Giumelli (1996) 17 WAR 159
Lombardo v Development Underwriting [1971] WAR 188
Nelson v Nelson (1995) 184 CLR 538
Palamore Pty Ltd v Clode, unreported; SCt of WA (Murray J); Library No 980599; 16 October 1998

Case(s) also cited:

Nil

(Page 3)

1 SCOTT J: The plaintiff in this action is the father of the defendant. The plaintiff will hereinafter be called Mr Cobanov senior and the defendant will Mr Cobanov junior.

2 Mr Cobanov senior was the owner of land at 31 Stock Road, Herne Hill in the State of Western Australia described as a portion of Swan location 2767 and being part of lot 1 on diagram 7628, being the whole of the land comprised in Certificate of Title volume 1256, folio 758 ("the land").

3 Mr Cobanov senior decided to sell a portion of the land to his son. By a contract dated 18 July…

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: [2002] WASC 257
Decision Date

CaseChat Overview and Summary

The case of Cobanov v Cobanov involves a dispute between Steve Cobanov and his son, Anthony Steve Cobanov, over the interpretation and legality of a contract for the sale of a portion of land. The Supreme Court of Western Australia was tasked with deciding whether a specific clause in the contract contravened section 20(1)(a) of the Town Planning and Development Act 1928. The court had to determine whether the agreement amounted to a de facto subdivision of the land, which would render it void under the Act. Steve Cobanov argued that the contract's clause granting exclusive use and occupation of specified portions of the land constituted a de facto subdivision, thus violating the Act. Conversely, Anthony Steve Cobanov contended that the contract was valid and did not contravene the Act. The court examined the language of the contract and concluded that the clause did not effect a subdivision of the land. The court held that the agreement merely granted exclusive possession and use of designated portions of the land, without altering the existing tenancy in common. The court further noted that there was no term fixed for the use or occupation by either party and that the agreement did not create any new legal interests in the land beyond what was already established by the tenancy in common. The court found that the agreement did not violate the Town Planning and Development Act 1928, and therefore, the contract was valid and enforceable. The court dismissed the plaintiff's contention that the agreement constituted a de facto subdivision of the land.

Orders