Din v Sefou

[2001] VSC 489

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8517 of 2001

Fazal Din and Another	Plaintiffs
v
Esho Sefou	Defendant

---

JUDGE:	Beach J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2001
DATE OF JUDGMENT:	7 December 2001
CASE MAY BE CITED AS:	Din & Anor v Sefou
MEDIUM NEUTRAL CITATION:	[2001] VSC 489

---

Sale of land – default by purchasers in effecting settlement – recision of contract – Condition 6(2) of Table A of the Seventh Schedule to the Transfer of Land Act 1958.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. M. Black	Chakeras Solicitors
For the Defendant	Miss S. MacDougall	Frank J. Horvat & Co.

HIS HONOUR: 

1. On 4 August 2001, the first-named plaintiff, Fazal Din, entered into a contract with the defendant, Esho Sefou, whereby he or his nominee agreed to buy a residential property at 18 Knight Court, Meadow Heights for the sum of $160,000.  The contract provided for payment of the deposit of $16,000 with the residue of the purchase money to be paid on 15 October 2001.

1. On 21 November 2001, the first-named plaintiff served upon the defendant's solicitor a real estate nomination form whereby he nominated the second plaintiff, Shabana Fazal Din, as a substitute purchaser for the property.  By agreement between the parties , the settlement date was extended to 5 November 2001. The letter whereby the defendant's agents agreed to that extension is a letter dated 25 October 2001 sent by Meadow Heights Conveyancing Services to the plaintiffs' solicitors.  The letter contains the following paragraphs:

"Finally, in relation to your letter dated 23  October requesting extension of settlement to Monday, 5 November 2001, we advise that our clients are agreeable to your clients' request but will reserve their right to issue a notice of recision on 6 November 2001 should your clients fail to settle on 5 November 2001." 

1. The plaintiffs and their solicitors could have been left in no doubt at that time as to the attitude of the defendant in the event settlement was not effected on the due date.

1. Settlement was not in fact effected on 5 November, and on 14 November a Notice of Recision was served on the first plaintiff.  The particulars of default read:

"Failure to pay balance of purchase moneys on due date." 

It also contains the following provisions:

"Take further notice that the vendor intends to exercise the vendor's rights unless the default is remedied and the proper legal costs of this notice specified in Item 9 and interest on the amount due under the contract at the rate specified in Item 8, calculated from the due date specified in the contract of sale, are paid within 14 days of service of this notice upon you, and the vendor will exercise the rights and remedies granted by the contract and/or common law. 

And take further notice that unless the default is remedied, the contract will be rescinded pursuant to general condition 6(2) of Table A of the 7th Schedule of the Transfer of Land Act."

Clause 9(1) of the general conditions of the contract reads:

"9(1) The general conditions in Table A of the 7th  Schedule of the Transfer of Land Act 1958 apply if the land is under the operation of that Act."

1. It is clear from the title particulars of the land as specified in the contract that the land is under the operation of the Transfer of Land Act.

Clause 6(2) of the 7th Schedule reads:

"If the notice also states that unless the default is remedied the contract will be rescinded pursuant to this condition, then if the default is not so remedied, the contract shall thereupon be rescinded."

1. The plaintiffs did not remedy the default within the 14 days specified and, accordingly, on 29 November last, the contract was rescinded pursuant to the provisions of Clause 6(2).

1. On 29 November 2001, the plaintiffs filed a writ in the court seeking the following relief: 

"1.A declaration that the recision notice dated 14  November 2001 served on the plaintiffs' solicitors on 15 November 2001 be set aside. 

2. An order that the defendant permit the plaintiffs' property valuer access forthwith to the premises known as 18 Knight Court, Meadow Heights, Victoria, and being the land described in Certificate of Title Volume 9708 Folio 987 (the property) for the purposes of valuing the property. 

3.An order that the defendant specifically perform and carry into execution the contract of sale of real estate dated 4 August 2001 entered into between the first plaintiff and the defendant insofar as it remains unperformed by the defendant."

1. I now have before me a summons filed in the court by the plaintiffs by which they seek identical orders.

1. The reason the plaintiffs were unable to effect settlement of the purchase was that they were unable to obtain finance.  What occurred in that regard was that a finance broker engaged by the plaintiffs told the second plaintiff on 19 November that a loan to the plaintiffs to purchase the property had been conditionally approved but one of the conditions of the approval was that a valuation of the property was required which showed that the value of the property was at least $160,000.  Initially the defendant agreed to allow a valuer acting on behalf of the proposed financier to have access to the property for the purpose of making a valuation.  However, when the valuer went to the property on 21 November, he was refused access.  In that situation, no valuation was ever carried out and the plaintiffs have still been unable to obtain finance to effect settlement.

1. Having considered the matters advanced to the court on behalf of the plaintiffs, I am not persuaded that the plaintiffs are entitled to any relief in this matter. The contract was rescinded as from 29 November 2001 by virtue of the operation of Clause 6 of the 7th Schedule to the Transfer of Land Act. The notice contained the endorsement referred to in Clause 6(2) of the schedule, and it followed from that, that as from 29 November, the contract was, and still, remains rescinded. I know of no obligation in law that is cast upon a vendor to give access to his property for the purposes of enabling a purchaser's valuer to make a valuation of the property, nor was counsel for the plaintiff able to point to any authority in that regard.

1. Accordingly, I am not satisfied that the plaintiffs are entitled to any relief in the matter.

1. In that situation, their writ and the summons filed in the court on 29 November 2001 must be dismissed.

1. I order that the plaintiffs pay the defendant's costs of the summons.

---