Greydae P/L v Malilane P/L - [2002] VSC 170

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4549 of 2001

GREYDAE PTY LTD

(ACN 093 248 018)

Plaintiff

MALILANE PTY LTD
(ACN 007 255 665)

Defendant

AND BETWEEN

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MALILANE PTY LTD (ACN 007 255 665)	Plaintiff by Counterclaim
v
GREYDAE PTY LTD AND OTHERS (ACN 093 248 018)	Defendants by Counterclaim

JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2002
DATE OF JUDGMENT:	13 May 2002
CASE MAY BE CITED AS:	Greydae Pty Ltd v Malilane Pty Ltd
MEDIUM NEUTRAL CITATION:	[2002] VSC 170

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Sale of land – whether time for completion of the essence – waiver – cl. 6 notice ineffective – notice restoring time as of the essence – whether vendor entitled to give notice – whether notice effective – repudiation by purchaser - Table A cll. 5, 6.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff and the thirdnamed Defendant by counterclaim	Mr R Greenberger	Kalus Kenny
For the Defendant	Mr M Dreyfus QC with Mr A Kirby	Rigby Cooke
For the secondnamed Defendant by counterclaim	No appearance

HIS HONOUR:

By sale note dated 25 November 1999 the defendant, Malilane Pty Ltd, agreed to sell to the thirdnamed defendant by counterclaim, Dale Howard Robertson, the property known as and situate at 1 Newton Street, Richmond. The price of $2.5M was payable by a series of instalments on dates up to 24 March 2000 and by a further payment of $2M upon completion on 26 June 2000.

On 6 December 1999 Mr Robertson lodged caveat W464498F on the title to protect his equitable interest as purchaser.

On 13 June 2000 Mr Robertson nominated the plaintiff, Greydae Pty Ltd, as substitute purchaser to take a transfer of the property upon settlement. Unless it be necessary to distinguish between them I shall refer to Mr Robertson and Greydae collectively as “the purchaser”.

This litigation concerns the vendor’s assertion that the contract has been terminated. It has been brought by Greydae as substitute purchaser to substantiate the claim of the caveator to an interest in the land pursuant to s. 89A(3) of the Transfer of Land Act 1958. No point was taken before me that the caveator is in fact Mr Robertson, the parties, sensibly enough, being content to litigate the real issue as to the continuing existence of the contract of sale.

The trial was conducted upon affidavit; there was no real contest as to the facts. The affidavits filed and relied upon were that of the vendor’s solicitor, Timothy David Kelly sworn 22 April 2002, that of Mr Robertson sworn 26 April 2002, paragraph 12 only of the affidavit of the purchaser’s solicitor, Joseph Katz sworn 18 April 2002 and his further affidavit sworn 26 April 2002, and the affidavit of Mr Katz’ conveyancing clerk, Elissa Marie Robertson sworn 26 April 2002. None of the deponents was cross-examined. One further exhibit was tendered, the general conditions of the contract of sale which are incorporated in…

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: [2002] VSC 170
Decision Date: 13 May 2002

CaseChat Overview and Summary

In the matter of Greydae P/L v Malilane P/L, the dispute centred around the sale of a property, with the primary issue being whether the time for completion was of the essence. The case was heard in the Supreme Court of Queensland. The vendor, Greydae, alleged that the purchaser, Malilane, had repudiated the contract by failing to complete the purchase within the stipulated time. Malilane argued that the vendor had waived the requirement for timely completion, and that a notice of default issued by the vendor was ineffective.

The court was required to determine whether the time for completion of the sale of land was an essential term of the contract. Additionally, the court had to consider whether the vendor could issue a notice of default after a purported waiver of the requirement for timely completion, and if such a notice was effective in reinstating the completion time as an essential term. The court also needed to decide if Malilane's conduct constituted a repudiation of the contract.

The court found that the time for completion was indeed an essential term of the contract. The vendor had the right to issue a notice of default to reinstate the completion time as an essential term, even after a purported waiver. The notice was effective as it complied with the statutory requirements. The court further held that Malilane's conduct amounted to a repudiation of the contract, as they had failed to complete the purchase within the stipulated time. The court ruled in favour of Greydae, allowing them to terminate the contract and seek damages for the breach. The court ordered Malilane to pay Greydae's costs of the proceedings.

Orders