Cullia v Gook - [2011] VSC 412

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

No. 1942 of 2011

MARY CULLIA	Plaintiff
v
ALLAN MICHAEL GOOK	First Defendant
and
SUZANNE GAYE GOOK	Second Defendant

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2011
DATE OF JUDGMENT:	18 August 2011
CASE MAY BE CITED AS:	Cullia v Gook
MEDIUM NEUTRAL CITATION:	[2011] VSC 412

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SALE OF LAND – Claim for specific performance – Vendors’ claim for summary judgment – Whether arguable case that vendors obstructed completion of sale – Summary judgment refused – Civil Procedure Act 2010 (Vic), s 63(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Schlicht	Chiodo & Madafferi
For the First Defendant	Ms N Lademann	Kempsons Lawyers
For the Second Defendant	Mr T R Messer	Wilsons Lawyers Pty Ltd

HIS HONOUR:

The defendants have applied for summary judgment in the proceeding. The plaintiff claims orders for specific performance of a contract of sale or, in the alternative, an order for the return of the deposit paid under the contract.

The essential facts are as follows. The defendants, who were formerly husband and wife, own a residential property at 13 Belvedere Close, Maribyrnong. It was their matrimonial home. Orders were made in the Federal Magistrates' Court that the property be sold. The defendants sold the property to the plaintiff for the sum of $1,310,000. Under the contract, the plaintiff was required to pay a deposit of $100,000 and to pay the balance of the price on 22 November 2010. The plaintiff was unable to pay the balance of the price on that day. On 23 November 2010, the defendants' solicitors served a rescission notice requiring completion of the contract within 14 days, and giving notice that the contract would be rescinded if not.

Following service of that notice, the plaintiff's solicitor sought and was granted an extension of time to settle until 10 December 2010. That extension was granted on the basis that it was without prejudice to the defendants' rights under the rescission notice.

The plaintiff did not complete the contract on the extended date as agreed, 10 December 2010.

On 14 December 2010, the defendants' solicitors wrote to the plaintiff's solicitors advising that the contract was at an end and the deposit forfeited.

By caveat registered on 17 December 2010, the plaintiff claims an interest in the land pursuant to the contract of sale.

On 31 January 2011, the defendants' solicitors demanded removal of the caveat. There was then further delay until 16 March 2011 when the defendants lodged an application under s 89A of the Transfer of Land Act 1958 for removal of the caveat. Following service of that notice, the plaintiff commenced the present proceeding.

The test to be applied in resolving an application for summary judgment is now governed by s 63(1) of the Civil Procedure Act 2010, which provides that a court may give summary judgment in any civil proceeding if satisfied that a claim,…

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: [2011] VSC 412
Decision Date: 18 August 2011

CaseChat Overview and Summary

Cullia v Gook involved a dispute over the sale of land between the vendors, the Cullias, and the purchasers, the Gooks. The Gooks had entered into a contract to purchase the property from the Cullias, but had failed to complete the sale. The Cullias sought specific performance of the contract and summary judgment on the basis that the Gooks had obstructed the completion of the sale. The case was heard in the County Court of Victoria.

The primary legal issue before the court was whether the Gooks had obstructed the completion of the sale of the property in a way that would make it unjust for the Cullias to be required to complete the sale. The court had to determine whether the Cullias had made out a case that was arguable on the evidence and, if so, whether it was just to grant summary judgment. The court also had to consider the provisions of the Civil Procedure Act 2010 (Vic), which set out the circumstances in which summary judgment may be granted.

The court found that the Cullias had made out an arguable case that the Gooks had obstructed the completion of the sale, but that it was not just to grant summary judgment in their favour. The court held that while the evidence supported the Cullias' claim that the Gooks had not taken reasonable steps to complete the sale, there were other factors that needed to be considered before a final determination could be made. The court also noted that the Civil Procedure Act required the court to consider the overall merits of the case, and not just whether the plaintiffs had made out an arguable case.

The court refused the Cullias' application for summary judgment and ordered that the matter proceed to a trial. The court held that while the Cullias had made out an arguable case, there were other factors that needed to be considered before a final determination could be made. The court also noted that the Civil Procedure Act required the court to consider the overall merits of the case, and not just whether the plaintiffs had made out an arguable case. The court held that it was not just to grant summary judgment in favour of the Cullias, and that the matter should proceed to a trial.

Orders