Hazelwood v Mercurio - [2021] VSC 362

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PROPERTY LIST

S ECI 2021 01701

ROWAN ELIZABETH CLARE HAZELWOOD	Plaintiff
v
FRANK ANDREW MERCURIO and DIANE HELEN JAMESON	First Defendants
THE REGISTRAR OF TITLES	Second Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2021
DATE OF JUDGMENT:	22 June 2021
CASE MAY BE CITED AS:	Hazelwood v Mercurio & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 362

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REAL PROPERTY – Caveats – Application for removal of a caveat under s 90(3) of the Transfer of Land Act 1958 (Vic) – Application by caveators to amend grounds of claim in caveat – Whether there is a prima facie case to be tried – BCA Asset Management Group Pty Ltd v Sand Solutions (Vic) Pty Ltd [2021] VSC 177, referred to – Whether there was a binding agreement between the vendor and the caveators for the sale of the property – Masters v Cameron (1954) 91 CLR 353, referred to – Where contract of sale not signed by the vendor – Whether correspondence from the vendor’s agent satisfies the requirements of s 126 of the Instruments Act 1958 (Vic) – Whether correspondence was a memorandum or note of an agreement in writing signed by a person lawfully authorised to sign such a note or memorandum – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd [2012] 1 WLR 3674, referred to and distinguished – Finding that vendor’s agent was not lawfully authorised in writing to enter into a contract of sale for the property – Finding that the caveators did not establish a prima facie case to be tried – Order that caveat be removed stayed for seven days.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D F McAloon	Piper Alderman
For the First Defendants	Mr N A Frenkel	Peter Cooper
For the Second Defendant	No appearance

HER HONOUR:

These reasons concern a dispute between the plaintiff, the owner of an apartment in a multiunit residential building in Flinders Street, Melbourne (‘vendor’) and the first defendants, who are disappointed prospective purchasers of the apartment (‘caveators’).[1] After reaching what was said by the caveators to be a binding agreement for the vendor to sell the apartment[2] to the caveators in February 2021, the vendor sold the apartment to another purchaser, Tall Poppy Investments Pty Ltd (‘new purchaser’). The contract of sale with the new purchaser was executed by the vendor after the caveators’ solicitors informed the vendor’s agent, Mr Toby Campbell of Caine Real Estate, of the caveators’ intention to lodge a caveat over the title of the apartment.
[1]The second defendant, the Registrar of Titles, has filed a submitting appearance.
[2]The caveators actually made an offer to purchase the apartment and one of two car parking spaces in the building owned by the vendor.

The caveat was lodged on 2 March 2021 by the caveators’ solicitor, Mr Peter Cooper. The grounds of claim was a ”part performed oral…

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: [2021] VSC 362
Decision Date: 22 June 2021

CaseChat Overview and Summary

Hazelwood lodged an application to remove a caveat over property, filed by Mercurio, pursuant to section 90(3) of the Transfer of Land Act 1958 (Vic). Mercurio, who had lodged the caveat, applied to amend the grounds of the caveat, arguing they had a prima facie case for the sale of the property. The primary legal issue was whether Mercurio had established a prima facie case to justify the caveat. A secondary issue was whether the correspondence from the vendor’s agent could be considered a signed memorandum under section 126 of the Instruments Act 1958 (Vic). The court examined the authority of the vendor’s agent to enter into a contract of sale and the sufficiency of the memorandum in light of relevant legal precedents.

The court found that Mercurio had not established a prima facie case. It held that the vendor’s agent did not have lawful written authority to enter into a contract of sale, as per section 126 of the Instruments Act 1958 (Vic). The court distinguished Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd, noting that the correspondence in question did not meet the criteria for a signed memorandum of an agreement. The court also referenced Masters v Cameron, concluding that the caveators had not demonstrated a binding agreement for the sale of the property. Consequently, the court determined that Mercurio had not made out a prima facie case, leading to the order that the caveat be removed, but stayed for seven days to allow for potential appeal.

Orders