Damco Nominees Pty Ltd v Moxham - [2012] VSC 79

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2012 00382

DAMCO NOMINEES PTY LTD	Plaintiff
– and –
BRIAN DAVID MOXHAM	Defendant

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 23 February, 1 March 2012
DATE OF JUDGMENT:	9 March 2012
CASE MAY BE CITED AS:	Damco Nominees Pty Ltd v Moxham
MEDIUM NEUTRAL CITATION:	[2012] VSC 79

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SALE OF LAND ― Purchaser’s inability to complete contract ― Lack of finance ― Vendor’s service of notice requiring default to be remedied ― Dispute over validity of notice ― Caveat lodged by purchaser ― Vendor’s termination of contract for failure to remedy default ― Action to remove caveat ― Default notice not invalid ― Contract terminated ― Caveat ordered to be removed ― Transfer of Land Act 1958 (Vic), s 90(3)

EQUITY ― Relief against forfeiture ― Termination of contract by vendor for purchaser’s failure to complete ― Finance subsequently available ― Applicable principles ― Relief unavailable

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M A Robins	Nathan Kuperholz
For the Defendant	Mr M C McKenzie	Bellili King & Associates

HIS HONOUR:

This is an application under s 90(3) of the Transfer of Land Act by an owner of land to remove a caveat lodged by the defendant. It is commonly referred to as a purchaser’s caveat; that is, a caveat which claims an interest in the land on the grounds of an uncompleted contract for the sale of the land. In circumstances I shall expose, the defendant purchased the vacant land for $1.9 million for a residential multi-site development. But he could not obtain the finance to complete the sale on the agreed date, and the contract was not conditional on finance. The vendor then served a notice under the contract giving the purchaser 14 days to remedy the default failing which, so the notice said, the contract would end. On the thirteenth day, the purchaser contended the notice was defective, and he also lodged the caveat. He did not proceed to complete the sale the following day. It is the fact that he did not have the finance. The vendor has always maintained the notice was valid and efficacious to bring the contract lawfully to an end. In these proceedings, the purchaser says he now has the finance and wants to purchase. The vendor says the contract is over.

By all outward manifestations, when the proceedings were filed and the hearing was underway, the only apparent issue for both the plaintiff and the Court was whether the notice of default was invalid, or more precisely, whether there was a prima facie case to say that it was. That is an objective exercise, largely having regard to the content or the “four corners” of the notice itself, together with any relevant objective circumstances.

But, the caveator’s case mutated at the hearing. This became consequentially a three day hearing with cross examination, subpoenaed documents, and the verisimilitude of…

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: [2012] VSC 79
Decision Date: 9 March 2012

CaseChat Overview and Summary

In Damco Nominees Pty Ltd v Moxham, the plaintiff, Damco Nominees, sought to remove a caveat lodged by the defendant, Mr Moxham, on property they had purchased from the vendor. The dispute arose after Mr Moxham failed to complete the purchase due to a lack of finance, despite the contract being unconditional. The vendor served a notice requiring Mr Moxham to remedy the default, which he did not. The vendor subsequently terminated the contract and Damco Nominees sought to remove the caveat. The central legal issues before the court were whether the vendor's notice was valid, and if equitable relief could be granted against the forfeiture of the contract.

The court examined whether the notice served by the vendor complied with the requirements of the Transfer of Land Act 1958 (Vic), s 90(3). It found that the notice was valid, and that Mr Moxham's failure to remedy the default justified the vendor in terminating the contract. The court also considered whether Mr Moxham could claim relief against forfeiture, given that finance became available after the termination. However, the court held that the principles of equity did not apply to provide relief in this instance, as the contract had been properly terminated due to the purchaser's failure to complete. Consequently, the court ordered the caveat to be removed, allowing the transfer of the property to Damco Nominees.

In light of the court's findings, Damco Nominees was entitled to the removal of the caveat, and the property could be transferred to them. The court ruled that the vendor had correctly followed the statutory requirements in terminating the contract, and that equitable relief was not applicable. The final orders of the court included the removal of the caveat and the direction for the transfer of the property to Damco Nominees.

Orders