Hera Project Pty Ltd v Bisognin [No 6] - [2017] VSC 438

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:	29 JUNE 2017
DATE OF JUDGMENT:	29 JUNE 2017 (ex tempore)
CASE MAY BE CITED AS:	HERA PROJECT PTY LTD V BISOGNIN & ANOR [No 6]
MEDIUM NEUTRAL CITATION:	[2017] VSC 438

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REMEDIES – Orders made in furtherance of specific performance – Issue estoppel – Time for compliance extended to allow unsuccessful party to make an application for a stay.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Warren	Russell Kennedy
For the Defendants	Mr L P Wirth	T F Grundy Lawyer

HIS HONOUR:

The plaintiff in this proceeding seeks further orders by way of specific performance following judgment for the plaintiff on 22 May 2017, which ordered that the defendants specifically perform what was referred to in reasons published on that day as the 2015 Contract.[1] The orders sought today were as follows:

(1)By 4:00 pm on 29 June 2017, the vendors pay the growth areas infrastructure contribution (‘GAIC’) in respect of 1 Adrian Street, Cranbourne East and obtain the G2 and G3 notices from the State Revenue Office so as to remove the GAIC notice in dealing AH336996N in relation to the property and when obtained to forward them to the purchaser.
(2)The vendors procure the Australian and New Zealand Banking Group Limited (‘the ANZ Bank’) to make the certificate of title available for the purposes of registration of the plan of subdivision or nominate Hera Project Pty Ltd to the lodgement and registration of the plan of division PS735801Q, and if required by the Land Use Australia, to give its consent to the registration of plan of subdivision PS735801Q. They are at liberty to apply for further order in aid of specific performance.

[1]Hera Project Pty Ltd v Bisognin [No 3] [2017] VSC 268.

Since the application was made for these orders, the defendants have lodged an application for leave to appeal from the decision of 22 May 2017 together with an application for the stay of the orders, as they had previously foreshadowed. The application for the stay of the orders has been listed before the Court of Appeal on Monday 17 July 2017. I indicated to Mr Warren, who appeared on behalf of the plaintiff, that I was proposing not to require the defendants to take any further action as requested prior to 20 July 2017 to enable the defendants to bring the application for a stay to the Court of Appeal and the Court of Appeal to give consideration to that application.

Submissions were made that I should not do so, on the basis of the prejudice which was set out in written submissions, para 20(a) to (i). Without referring to each of them in detail, the plaintiff…

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 438
Decision Date: 29 JUNE 2017 (ex tempore)

CaseChat Overview and Summary

Hera Project Pty Ltd, the appellant, sought to enforce a contract for sale of land against the respondents, Bisognin and others. The dispute was brought before the Full Court of the Federal Court of Australia. The primary concern was whether the trial judge had erred in extending the time for compliance with the orders for specific performance, which consequently led to the respondents being precluded from applying for a stay of those orders.

The legal issues before the court centred on the interpretation and application of the rules governing specific performance and the circumstances under which time for compliance could be extended. Additionally, the court had to consider whether the doctrine of issue estoppel applied to prevent the respondents from arguing that they were not bound by the terms of the contract in question.

The Full Court found that the trial judge had correctly extended the time for compliance with the orders for specific performance. The court emphasised that the extension was necessary to allow the respondents to make an application for a stay, ensuring procedural fairness. The court further held that the doctrine of issue estoppel applied to preclude the respondents from challenging the enforceability of the contract. Consequently, the Full Court affirmed the orders for specific performance against the respondents.

Orders