Doluner v Arthur - [2016] VSC 795

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S CI 2016 04749

KORALTAY MUSTAFA DOLUNER AND ANOTHER (according to the attached schedule)	Plaintiffs
v
JANE DIANA ARTHUR AND OTHERS (according to the attached schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	12 and 15 December 2016
DATE OF RULING:	21 December 2016
CASE MAY BE CITED AS:	Doluner and anor v Arthur and ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 795

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REAL PROPERTY – Caveat – Application for removal of caveat – Section 90(3) of Transfer of Land Act 1958 (Vic) – Caveat based on a contract of sale of property – Serious question to be tried – Whether contract of sale validly rescinded – Whether vendors estopped from relying upon rescission notice – Difficulties in resolving factual disputes on an interlocutory basis – Caveator’s case not strong – No undertaking for damages proffered – Balance of convenience favours the removal of the caveat.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Parker	Pauline Madden Conveyancing and Legal Lawyers
For the Defendant	Mr P Little	Dangerfield Exley Lawyers

HER HONOUR:

This application concerns a contract of sale between the plaintiffs (‘vendors’) and the first defendant with respect to a property at 97-121 Murray Road, Rockbank (‘property’). The contract of sale was executed on 6 July 2016, and included the following terms:

(a) the purchase price was $7,487,500, with a deposit of $2,246,250; and

(b) the deposit was payable in four instalments, with the final instalment of $2,147,500 due on 15 September 2016.

Significantly, the contract of sale was unconditional. It was not subject to the purchaser obtaining finance to pay the deposit or settle the purchase of the property.

On 8 August 2016, the first defendant nominated the second defendant, Sandilands Establishment Pty Ltd as trustee of the Sandilands Family Trust (‘Sandilands’) as the purchaser of the property (‘purchaser’).

On 5 September 2016 the parties executed a variation to the contract of sale (‘Variation’). The Variation provided for a price increase of $250,000, the execution of a guarantee by the third defendant, Ms Rebecca (‘Ruby’) Janssen, and provided for the balance of the deposit of $2,147,500 to be paid by 15 September 2016, with final settlement due by 5 March 2017. The Variation included the following statement:

Caveat can be lodged after discharge of the mortgage or the caveat will need to be withdrawn and relodged at the Purchasers’ expense.

The construction of this rather ambiguous term is of some significance to the question of whether there is a serious question to be tried.

The deposit sum is thirty per cent of the total purchase price. It is common ground that the purchaser has paid the vendors the sum of $350,000. It is also common ground that the purchaser failed to pay the balance of the deposit due on 15 September 2016. On the following day, the solicitors for the vendors issued a Notice of Default and Rescission…

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 Doluner v Arthur

Details

AGLC: Doluner v Arthur [2016] VSC 795
Case: [2016] VSC 795
Decision Date: 21 December 2016

CaseChat Overview and Summary

Doluner v Arthur is a case involving a dispute over the removal of a caveat from a property title. The case was heard in the Supreme Court of Victoria. The applicant, Doluner, sought the removal of a caveat lodged by Arthur, the respondent, which was based on a contract of sale of a property. The dispute centred on whether the contract of sale was validly rescinded and whether Arthur was estopped from relying on the rescission notice.

The legal issues before the court included whether the contract of sale was validly rescinded and whether Arthur was estopped from relying on the rescission notice. The court was required to determine whether the caveator's case was strong enough to warrant the continuation of the caveat and whether the balance of convenience favoured the removal of the caveat. The court also considered whether Doluner had provided an undertaking for damages in the event that the caveat was ultimately found to be unjustified.

In its reasoning, the court found that the factual disputes were difficult to resolve on an interlocutory basis. However, it determined that Doluner's case was not strong enough to justify the continuation of the caveat. The court also noted that Doluner had not proffered an undertaking for damages, which would have been necessary to support the maintenance of the caveat. The balance of convenience was found to favour the removal of the caveat, as the continued existence of the caveat was causing significant inconvenience to Doluner.

The final orders of the court were that the caveat lodged by Arthur be removed from the property title. The court also ordered that Doluner pay Arthur's costs of the application. The decision highlights the importance of providing an undertaking for damages in cases where a caveat is challenged, and the difficulties that can arise when resolving factual disputes on an interlocutory basis.

Orders