JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 NOVEMBER 2011
DATE OF JUDGMENT:	1 DECEMBER 2011
CASE MAY BE CITED AS:	DATTNER v WHARTON
MEDIUM NEUTRAL CITATION:	[2011] VSC 610

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Contract – Whether email from plaintiff was an offer to sell property which was capable of acceptance – Whether defendant accepted all of the conditions of the plaintiff’s offer to sell – Whether payment of owners corporation fees and council rates created equitable estoppel against plaintiff denying any contract of sale had been concluded.

Practice and Procedure – Application for summary judgment for possession of property – Whether defence and counterclaim alleging concluded contract of sale or equitable estoppel had no real prospect of success – Civil Procedure Act 2010, ss 63, 64.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr SG Hopper	Emma Crean
For the Defendant	Mr WG Stark	Melbourne Legal Partners Pty Ltd

HIS HONOUR:

Introduction

This is an appeal from an order of an Associate Judge made on 21 October 2011:

(a)dismissing the plaintiff’s summons seeking summary judgment for possession of the land described in the statement of claim, and

(b) giving the defendant leave to defend.

Pursuant to r 77.06(7) of the Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”), the appeal is by re-hearing de novo. For the reasons given below I have decided that there should be an order that the plaintiff have possession of the property in question.

The Factual Background

The plaintiff, Nicholas Dattner, is the registered proprietor of the land situated at and known as Unit 16 and Accessory Unit 46, 26 Wellington Street, Collingwood in the State of Victoria, being the land more particularly described in certificates of title volume 10359 folio 774 and volume 10359 folio 802 (“the Property”).

By a contract of sale made on 30 April 2008 Mr Dattner sold the Property to the defendant, Stephen Wharton, or his family trust and/or nominee for the sum of $1,868,750 payable by a deposit of $10,000, 14 equal monthly instalments of $7,500 each commencing on the settlement date of 30 June 2008 and the balance of $1,753,750 on the day 15 months following the settlement date (“the first contract of sale”). Vacant possession of the Property was to be given to Mr Wharton on the settlement date but title was not to pass until payment in full. Mr Wharton started occupying the Property on or about 30 June 2008. A title search showed that a caveat lodged by Mr Wharton in the capacity of “purchaser/fee simple” was registered on 21 July 2009.

By a letter dated 21 May 2010 Mr Dattner’s then solicitors gave Mr Wharton 14 days’ notice of rescission for default under the first contract of sale. However, Mr Wharton did not vacate the Property.

Instead, by an agreement dated 29…

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.

Continue reading Dattner v Wharton

Details

AGLC: Dattner v Wharton [2011] VSC 610
Case: [2011] VSC 610
Decision Date: 1 DECEMBER 2011

CaseChat Overview and Summary

Dattner, the plaintiff, brought a claim for summary judgment against Wharton, the defendant, seeking possession of a property. The dispute hinged on whether an email from the plaintiff constituted an offer to sell the property and whether the defendant accepted all conditions of the offer, including the payment of owners corporation fees and council rates. Additionally, the defendant raised a defence and counterclaim, asserting that an agreement had been reached or that an equitable estoppel existed against the plaintiff denying the existence of a contract of sale.

The central legal issues involved interpreting the email to determine if it was a formal offer that could be accepted, and if so, whether the defendant’s actions constituted acceptance of that offer. The court also needed to assess whether the payment of fees and rates by the defendant created an equitable estoppel, preventing the plaintiff from denying the existence of a contract.

The court found that the email did not constitute a formal offer capable of acceptance but rather an indication of willingness to sell. The defendant had not fulfilled all conditions of the offer, including the payment of fees and rates, which were integral to the proposed sale. Furthermore, the court held that the payments made by the defendant did not amount to an equitable estoppel. The court granted the plaintiff’s application for summary judgment, dismissing the defendant's defence and counterclaim as having no real prospect of success.

As a result of the court’s decision, the plaintiff was awarded possession of the property. The court ruled that the defendant had failed to establish the existence of a concluded contract or equitable estoppel against the plaintiff’s denial of such a contract.

Orders