Hera Project Pty Ltd v Bisognin [No 5] - [2017] VSC 383

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2016 03457

HERA PROJECT PTY LTD (ACN 163 685 041)	Plaintiff
v
GINO ANDREW BISOGNIN	First Defendant
- and -
LEAH JOAN BISOGNIN	Second Defendant

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 JUNE 2017
DATE OF JUDGMENT:	29 JUNE 2017
CASE MAY BE CITED AS:	HERA PROJECT PTY LTD v BISOGNIN & ANOR [No 5]
MEDIUM NEUTRAL CITATION:	[2017] VSC 383

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PROPERTY LAW – Sale of land – Subdivision of land – Reasonable access to lot – Sale of Land Act 1962 s 9AD considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Pane QC with Mr J J Whelan	Russell Kennedy
For the Defendant	Mr J A Ribbands	T F Grundy Lawyer

HIS HONOUR:

The plaintiff (‘the purchaser’) seeks an order pursuant to s 9AD of the Sale of Land Act 1962 that the defendants (‘the vendors’) allow it reasonable access to Lot 1 on an unregistered Plan of Subdivision being part of the land described in Certificate of Title Volume 8776 Folio 892, being part of 1 Adrian Street, Cranbourne East for the purpose of completing a cultural heritage management plan (‘Lot 1’). Section 9AD(3) of the Sale of Land Act 1962 provides as follows:
The vendor shall allow the purchaser under a prescribed contract of sale reasonable access to the lot for any purpose connected with the proposed development or use of the lot.
The application is part of protracted litigation between the parties arising out of a contract of sale of Lot 1 exchanged on 25 March 2015 (‘the 2015 Contract’).

On 22 May 2017, I ordered that the vendors specifically perform the 2015 Contract for reasons then published.[1]
[1][2017] VSC 268.

Relevant Facts

For the purposes of the present application the relevant facts are as follows:

By contract of sale of land dated 29 February 2012 (‘the 2012 Contract’), the vendors agreed to sell Lot 1 to Joslin Street SA Developments Pty Ltd and/or nominee for a price of $3,600,000 including a deposit of $1,000,000 payable as follows:

(a) $10,000, which had already been paid.
(b)$990,000 payable ‘As per special condition 1’.

(c) $2,600,000 payable on the settlement date being 31 December 2012 ‘or 14 days after the vendor gives notice to the purchaser of registration of the plan, whichever is the later’.

The special conditions of the 2012 Contract were as follows:

1.The balance of the deposit namely $990,000.00 is payable within 7 days of Plan of Subdivision being approved as referred to in clause 4 herein.
2.This sale is subject to the City of Casey amending the Strategic Plan to accommodate a full line supermarket with associated shops on the site herein.
3.(a) The Purchaser shall at its own cost and expense prepare a Plan of Subdivision in respect of the land comprised in the Parcel in or to the like effect of the Plan of Subdivision annexed…

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: [2017] VSC 383
Decision Date: 29 JUNE 2017

CaseChat Overview and Summary

Hera Project Pty Ltd initiated legal action against Bisognin, seeking a declaration that certain land transactions were void. The central issue in the case was whether the sale of a parcel of land by Hera Project Pty Ltd to Bisognin complied with the statutory requirements under the Sale of Land Act 1962, specifically regarding the reasonable access to the lot. The court was tasked with determining whether the conditions stipulated by the Act had been met, particularly in relation to the subdivision of the land and the provision of adequate access.

The primary legal issue before the court was whether the sale of the land in question complied with section 9AD of the Sale of Land Act 1962. This section mandates that when a lot is sold, there must be reasonable access to it. The court had to examine the evidence regarding the existing access to the lot and determine if the conditions of the Act were satisfied. The court considered the nature of the access, its adequacy, and whether the subdivision and sale complied with statutory requirements.

The court found that the access to the lot did not meet the statutory requirements for reasonable access as per section 9AD of the Sale of Land Act 1962. The existing access was deemed inadequate, and the subdivision and sale did not comply with the necessary statutory conditions. Consequently, the court ruled that the sale of the land to Bisognin was void. The court's decision was based on the lack of reasonable access, which was a fundamental requirement under the Act.

The final orders of the court declared the sale of the land to Bisognin void, effectively rendering the transaction null and void. The court further ordered that Hera Project Pty Ltd take appropriate steps to rectify the situation to ensure compliance with the Sale of Land Act 1962. This included ensuring that there was reasonable access to the lot in question. The court's decision aimed to uphold the statutory requirements and protect the interests of all parties involved in the land transaction.

Orders