De Amicis v Mattiuzzo - [2013] VSC 733

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5739 of 2013

GIOVANNI DE AMICIS	Plaintiff
v
CARMELO MATTIUZZO	Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 December 2013
DATE OF JUDGMENT:	20 December 2013
CASE MAY BE CITED AS:	De Amicis v Mattiuzzo
MEDIUM NEUTRAL CITATION:	[2013] VSC 733

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SALE OF LAND – Contract - Vendor and purchaser –Application under s 49(1) of the Property Law Act 1958 – Rescission where time of the essence of the contract – Notice of Default – Whether period of notice reasonable.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr David P Lloyd	Randles Cooper Lawyers
For the Defendant	Mr Garry Moffatt	John V Hayes & Co

HIS HONOUR:

Background

The On 18 May 2010 a Contract for the sale of real estate was executed between the plaintiff as vendor and the defendant as purchaser. The subject property was a house in Brunswick, Victoria. The purchase price was $1 million payable by a deposit of $50,000 on 31 May 2010 with the balance of $950,000 due on 17 May 2011.

The parties agreed to amend the Contract of Sale. The sale price was increased to $1,100,000 with a deposit of $100,000, of which $50,000 had already been paid. The balance of the deposit became payable on 20 March 2011 and the remaining $1,000,000 with settlement on 17 May 2012.

The final $50,000 owing by way of deposit was finally paid on 26 August 2011. Thereafter a labyrinthine series of variations, missed deadlines and purported rescissions took place. It will be necessary later in this judgment to set these out in some detail.

By October 2013, three and a half years after the original Contract of Sale was executed, the purchaser served a Notice of Default on the vendor. It is common ground that the sale contract provided for vacant possession upon settlement. The defendant says that the vendor could not provide vacant possession on that date. It is against this broad background that the Notice of Default of 22 October 2013 was served by the purchaser.

These proceedings are brought under s 49(1) of the Property Law Act 1958 (Vic). A vendor or purchaser of any interest in land is entitled to apply to this Court in respect of ‘any question arising out of or connected with the contract’ provided the question posed does not affect the existence or validity of the contract.

At paragraph one of his originating motion the plaintiff asks the court to determine the following questions:

(a) When the defendant gave to the plaintiff the notice styled “Notice of Default” and dated 22 October 2013 (“the Notice”) pursuant to the Contract, was time still of the essence of the contract?

(b) If the answer to question one is “no”, is the period provided for in the Notice a reasonable period of time in all the circumstances for the plaintiff to be required to complete the Contract?

If the answer…

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 De Amicis v Mattiuzzo

Details

AGLC: De Amicis v Mattiuzzo [2013] VSC 733
Case: [2013] VSC 733
Decision Date: 20 December 2013

CaseChat Overview and Summary

In the case of De Amicis v Mattiuzzo, the dispute was centred around the sale of a property in Melbourne, where the vendor and purchaser could not reach an agreement on the terms of the contract. The matter was brought before the Supreme Court of Victoria to determine whether the contract could be rescinded due to a breach of an essential term. The court was tasked with deciding whether the time of the essence clause in the contract was indeed essential and if the period of notice provided by the purchaser to the vendor was reasonable.

The legal issues before the court included whether the time of the essence clause was fundamental to the contract and whether the notice of default provided by the purchaser was adequate. The court examined the language of the contract and the surrounding circumstances to determine the intent of the parties in including the time of the essence clause. The court also assessed whether the notice of default was sufficient to allow the vendor to cure the default before the purchaser sought to rescind the contract.

In reaching its decision, the court held that the time of the essence clause was indeed fundamental to the contract, as it was clear that the parties intended for the contract to be performed within a strict timeframe. The court found that the notice of default provided by the purchaser was reasonable, as it gave the vendor sufficient time to remedy the breach before the purchaser sought to rescind the contract. Consequently, the court dismissed the purchaser's application for rescission. The court concluded that the vendor had not breached the contract in a way that warranted rescission, and the sale of the property proceeded as planned.

Orders