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

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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

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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.

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

HIS HONOUR:

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.

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."

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.

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…

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 Din v Sefou

Details

AGLC: Din v Sefou [2001] VSC 489
Case: [2001] VSC 489
Decision Date: 7 December 2001

CaseChat Overview and Summary

The case of Din v Sefou concerns a dispute over the sale of land in Melbourne. The vendor, Din, sought to rescind a contract for the sale of land to the purchasers, Sefou, due to their default in effecting settlement. The matter was heard in the Supreme Court of Victoria. The principal legal issue was whether the vendor could lawfully rescind the contract of sale for the purchasers' failure to complete the settlement as per the agreed terms.

The court was required to examine Condition 6(2) of Table A of the Seventh Schedule to the Transfer of Land Act 1958, which outlines the rights of a vendor to rescind a contract when the purchaser fails to complete settlement. The court considered whether the vendor had properly notified the purchasers of the default and if the default was substantial enough to warrant rescission. The court also needed to determine whether there were any mitigating factors that might prevent the vendor from exercising their right to rescind.

In its reasoning, the court held that the vendor had validly exercised their right to rescind the contract, as the purchasers had failed to complete the settlement within the stipulated time. The court found that the vendor had complied with the statutory requirements, including providing the necessary written notice to the purchasers. The court also concluded that the purchasers' default was substantial, as it directly impacted the vendor's ability to transfer the land. Consequently, the contract was rescinded, and the vendor was entitled to retain the deposit paid by the purchasers.

The final order of the court was that the contract for the sale of land between Din and Sefou be rescinded, and the deposit paid by the purchasers be retained by the vendor. The court further directed that any costs associated with the proceedings be borne by the purchasers.

Orders