Dobson Project Services Pty Ltd v Emerald Asset Pty Ltd - [1999] WADC 121

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DOBSON PROJECT SERVICES PTY LTD -v- EMERALD ASSET PTY LTD & ORS [1999] WADC 121

CORAM: YEATS DCJ

HEARD: 27 AUGUST 1999

DELIVERED : 17 NOVEMBER 1999

FILE NO/S: CIV 359 of 1997
CIV 1041 of 1997

BETWEEN: DOBSON PROJECT SERVICES PTY LTD (ACN 062 830 228)
Plaintiff
AND
EMERALD ASSET PTY LTD (ACN 075 175 450)
First Defendant
ROBERT WAYNE SYDNEY-SMITH
PATREEN MARY SYDNEY-SMITH
ANTHONY KASTROPIL
JAMES ALAN RAWLINGS
NEIL ALWYN HAMILTON
SUSAN HAMILTON
Second Defendants
CUSMA CORPORATION PTY LTD (058 801 442)
Third Defendant

Catchwords:

Contract - Whether Part V of Strata Titles Act applies to a contract for the sale of a whole parcel of land - Unlawful repudiation of contract - Meaning of "original proprietor" - Meaning of "proposed lot" - s69 Strata Titles Act.

Legislation:

Strata Titles Act 1985

Result:

Unlawful repudiation of contract.

Representation:

Counsel:

Plaintiff:     Mr H Kremer
First Defendant             :     Mr I A Morison
Second Defendants       :
Third Defendant           :

Solicitors:

Plaintiff:     H Kremer & Co
First Defendant             :     Corsers
Second Defendants       :
Third Defendant           :

Case(s) referred to in judgment(s):

Bowes v Chaleyer (1923) 32 CLR 159
Chan v Dainford Ltd (1985) 155 CLR 533
Cooper Corporation Pty Ltd & Ors v Mahedran Sinnatamby & Anor, unreported; SCt of WA; Library No 5559; 28 September 1994

Case(s) also cited:

Agaiby v Pantham Nominees Pty Ltd (1985) 55 LGRA 405
Boston Deep Sea Fishing & Ice Co v Ansell (1888) 39 Ch D 339
Coast Securities No 9 Pty Ltd v Bondoukou Pty Ltd (1986) 69 ALR 385
Fercometal SARL v Mediterranean Shipping Co SA (1988) 3 WLR 200
Palmerston (Qld) Pty Ltd v Fogl [1983] 2 QD R 700
The Hansa Nord (1976) QB 44
Universal Cargo Carriers Corp v Citati (1957) 2 QB 401
Wight v Foran (1987) 11 NSWLR 470

YEATS DCJ: This is the trial of two preliminary issues of law:
(1)Does Part V of the Strata Titles Act apply to the contract in writing made on 15 August 1996?
(2)Did the first defendant by its written notice to the plaintiff dated 15 December 1996 lawfully terminate the contract or did the first defendant thereby unlawfully repudiate the contract?

Chronology

The parties agreed that the questions of law should be answered by reference to the pleadings and to the plaintiff's documents excluding document number 4. From those documents the following facts emerge.
The plaintiff was the sole proprietor of land situated at 41 Beatty Avenue, East Victoria Park being Lot 222 on Plan 1734, Certificate of Title Vol 1620 Folio 937. On 15 August 1995 the plaintiff accepted an offer in writing from the first defendant to sell the land for a purchase price of $470,000 conditional on the plaintiff developing the property by building four residential units upon it ("the contract"). The purchase price was to be paid by a deposit of $60,000 payable within 21 days of acceptance with the balance to be…

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: [1999] WADC 121
Decision Date: 17 NOVEMBER 1999

CaseChat Overview and Summary

In the case of Dobson Project Services Pty Ltd v Emerald Asset Pty Ltd, the plaintiff, Dobson Project Services Pty Ltd, sought a declaration that a contract for the sale of a parcel of land was subject to Part V of the Strata Titles Act 1985 (Vic). The defendant, Emerald Asset Pty Ltd, argued that the contract was not subject to the Act. The dispute was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether Part V of the Strata Titles Act applied to the contract for the sale of a whole parcel of land and if the defendant had unlawfully repudiated the contract. The court also needed to determine the meaning of "original proprietor" and "proposed lot" under section 69 of the Act.

The court examined the terms of the contract and the practices of the Department of Land and Survey (DOLA) regarding the allocation of a dealing number upon lodgement of a strata plan and payment of a fee. The court found that the parties intended for settlement to occur upon the plaintiff receiving a dealing number, rather than upon the registration of the strata plan. The court concluded that the contract did not require the plaintiff to register the strata plan at the time of settlement, but only to construct the units and lodge the strata plan to obtain a dealing number. As such, the court found that the contract was not subject to Part V of the Strata Titles Act and that the defendant had not unlawfully repudiated the contract.

The court ordered that the plaintiff take nothing by way of its claim and that the defendant pay the plaintiff’s costs of the proceeding. The court found that the defendant’s repudiation of the contract was not unlawful, and that the terms of the contract did not require the plaintiff to register the strata plan at the time of settlement. The court held that the parties intended for settlement to occur upon the plaintiff receiving a dealing number, and that this was not inconsistent with the provisions of the Strata Titles Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It was necessary in the Cooper Corporation case for the court to determine what the parties intended by the term of their contract that the settlement day was to be on or before seven days after issue of a strata plan number. Pidgeon J determined that issue by receiving evidence of Titles Office practice."It was submitted to me that if one follows the Strata Titles Act 1966 and the Regulations, a strata plan number would not be effectively allocated until registration of the strata plan. I am satisfied, however, that the parties intended the time to be when, in the normal practice of the Titles Office, the strata plan number is first made known. I had evidence from Mr Black as to what was the Office of Titles procedure. I consider the prevailing practice is what is all important because that it what would have been in the parties' minds when they specify such a date in the manner they have. The prevailing practice is that as soon as the strata plan is lodged a number is allocated to it by the Office of Titles and made known. It is then followed by an application to register the strata plan and that is done by lodging the old title with an application to register to enable the new strata titles to issue. That, however, presumably would not normally be done until the first dealing which, in this case, would have been done at the settlement contemplated by the contract of sale with which I am dealing." (pp3-4)… It would also be consistent with what one would have thought the parties had in mind; namely, that the plaintiffs did undertake to do the building of the units and did not require money under the terms of the contract until the units were built and until they could be conveyed separately. At all times the conveyance could have been made on the contract because the old title could be conveyed by reason of its being the whole of the land and the title. The intention of the parties was that the conveyance would not go through until it was capable of being conveyed as a strata title and under the Act that could not be brought about until the building was finished in order to get the necessary certificates under the Strata Titles Act. When it is finished it is clear on Mr Black's evidence that one lodges the plan and very shortly after the day he mentioned, I think within a day or so, dealings would have been accepted, including the dealing to which I have referred, which would make the strata plan live, namely, bringing the old certificate of title in then having the strata plan registered and new certificates issuing". (pp4-5) The plaintiff relies on the reasoning of Pidgeon J on this issue and suggests the court should reach a similar conclusion in relation to this contract. In this case it is clear from DOLA's practice that a dealing number issues with lodgement of the strata plan and payment of the fee. While it is true that the proprietor of the parcel may apply to register the strata plan either simultaneously with lodgement of the plan or at any time thereafter (DOLA practice), it is significant that in this case the parties to the contract agreed that settlement was dependent only on the plaintiff's receipt of a dealing number. If the parties had intended that the plaintiff register the strata plan and convey the strata titled lots at the time of settlement I would have expected the parties to have said so. I am satisfied that this contract requires no more of the plaintiff than construction of the units and lodgement of the strata plan with the fee so as to obtain a dealing number. Registration is not required.