Jeak Ding Ek v Red Eagle International Pty Ltd (ACN 603 183 357) as trustee for Chunan Bai Hybrid Unit Trust

[2022] VSCA 254

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0099

JEAK DING EK	Applicant
v
RED EAGLE INTERNATIONAL PTY LTD (ACN 603 183 357) AS TRUSTEE FOR CHUNAN BAI HYBRID UNIT TRUST	Respondent

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JUDGES:	NIALL and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2022
DATE OF JUDGMENT:	18 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 254
JUDGMENT APPEALED FROM:	Red Eagle International Pty Ltd v Jeak Ding Ek (Unreported, County Court of Victoria, Judge Brimer, 21 October 2022)

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CONTRACT – Caveat – Application for leave to appeal against order to remove caveat – Transfer of Land Act 1958 s 90(3) – Whether error in finding prima facie case weak – Whether exercise of discretion unreasonable – Leave to appeal granted – Appeal allowed.

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Counsel
Applicant:		Mr T Mitchell
Respondent:		Mr P Noonan
Solicitors
Applicant:	JEM Lawyers
Respondent:	Jasper Lawyers

NIALL JA
KENNEDY JA:

1. On 21 October 2022, a judge of the County Court ordered the applicant to remove a caveat which had been lodged in respect of three adjoining buildings situated at 7–13 Carrington Road, Box Hill VIC 3128 (the ‘Properties’) by 12:00 pm on Friday 4 November 2022.

2. Following the filing of an application for leave to appeal, this Court made orders (by consent) to stay the operation of that order until 4:00pm on 16 November 2022, or further order.

3. On 15 November 2022, we heard the application and (given the urgency) made orders granting leave to appeal and allowing the appeal. We indicated that reasons would be provided in due course, which are now set out, below.

Background

1. The respondent, Red Eagle International Pty Ltd (‘Red Eagle’), is the registered proprietor of the Properties. Ms Cherry Pai is a director of Red Eagle. The applicant, Ms Jeak Ding Ek (also known as ‘Jade’ Ek) has lodged a caveat over the Properties to protect her interest as purchaser of the Properties.

2. Both parties accepted that negotiations took place between Ms Pai and Ms Ek during 2021 and early 2022 in relation to the purchase of the Properties. In or around July 2021, Ms Ek was provided with a copy of a draft contract of sale and vendor’s statement under s 32 of the Sale of Land Act 1962. She later paid $3,000 to the respondent.

3. It is also not disputed that the parties met on 14 June 2022 at a café in Box Hill to discuss the sale of the Properties. A purchase price of $12.15 million was proposed and a ‘particulars of sale’ page was used to write down the discussion between the parties. The applicant sent the respondent a text message with a photo of the completed particulars which included the price of $12.15 million and a handwritten amendment by the applicant of the address, from ‘7–13 Carrington Road Box Hill’ to ‘7–15 Carrington Road, Box Hill’ (the ‘first particulars’). Ms Ek says that the first particulars constituted an offer to purchase the properties at 7–15 Carrington Road, Box Hill for $12.15 million, but that the respondent explained that shop 15 was not on the title to the Properties, and therefore not available for sale.

4. On 9 July 2022, the applicant and the respondent met at the applicant’s dental clinic located at 1029 Whitehorse Road, Box Hill to discuss the Properties. What actually occurred at this meeting is the subject of conflicting evidence, but there is no dispute that a revised ‘particulars of sale’ document exists, which is dated 9 July 2022, and is annexed to these Reasons as Annexure A (the ‘9 July Particulars’).

5. The 9 July Particulars record the following:

   •Vendor: Red Eagle International Pty Ltd

   •Purchaser: Jade[1] Ek & or Nominee

   •Street Address: 7–13 15 Carrington Road Box Hill 3128

   •Purchase price: $11,850,000.00

   •Deposit : $355,500.00 3–5% or ($592,500 @ 5%)

   •Balance: $11,494,500.00 (9–12 months)

   [1]Ms Ek was also known as ‘Jade’.

6. The 9 July Particulars also include two further handwritten notes:

   •N/B 3–5% Due 10/10/2022

   •N/B On Market Value 2 yrs after settlement if Property appreciate (Jade) will give 300k

7. The amounts recorded for price, deposit and the balance are written over white out and are in the applicant’s handwriting. Ms Ek’s initials (but not Ms Pai’s) also appear proximate to the entries in respect of the purchaser, street address, ‘3–5% deposit’, and the notes.

8. However, the parties accept that the 9 July Particulars document is signed by both parties at the bottom of the document. The applicant’s signature appears next to the Chinese characters which say ‘purchaser’ (next to a date of 9 July 2022), while Ms Pai’s signature appears next to the Chinese characters for ‘vendor’.

9. Ms Ek relies on the 9 July Particulars to support her caveatable interest as a purchaser under an enforceable contract of sale. She says that the document supports an agreement within the first category of cases recognised in Masters v Cameron,[2] ie a case where the parties intend to be bound immediately, though expressing a desire to draw up their agreement in a formal document at a later stage.[3] Ms Ek also relies on the principle that where a person signs a document knowing it is a legal document relating to an interest in property that person is generally bound by the act of signature.[4]

   [2](1954) 91 CLR 353; [1954] HCA 72.

   [3]Ibid 360–1 (Dixon CJ, McTiernan and Kitto JJ).

   [4]Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 182 [47] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); [2004] HCA 52.

10. Thus, Ms Ek deposed that while she was initially prepared to purchase the Properties for $12.15 million, this altered when it became apparent that Red Eagle could not sell number 15.[5] Her version of the meeting of 9 July 2022 was as follows:

    I met with Cherry and her husband again on 9 July 2022. We initially had lunch near my office at 1029 Whitehorse Road, Box Hill Victoria and discussed the Carrington Properties. At this point, I said to her that I was initially prepared to offer $12,150,000.00 but that after discussions with my son, who was investing in the Carrington Properties with me, that we were only prepared to purchase the Carrington Properties for $11,850,000.00. Cherry asked me if I would consider paying her $300,000 if the Carrington Properties increased in value of at least that amount. I agreed to this. At the time we did not have the particulars of sale in front of us. Cherry was disappointed and said she wanted me to sign that day. I told Cherry we could meet again later to sign a clean copy as the copy I had contained my previous offer, but she was insistent that we both sign something to confirm the agreement. I then remembered I had electronic access to the one page I had sent to her previously by sms, and so we went to my office and arranged for my staff to print it out.

    She asked if I had white out, which I did, so she whited out the details and asked me to complete the price and other details, which I did except for the Chinese writing appearing at the bottom, which was done by Cherry. I asked Cherry what that writing was and she said it was “buyer” and “seller”. I signed where the buyer appeared and wrote the date, “9/7/2022”. Cherry signed where the seller appeared. The last thing written on the document appearing at page 12 of exhibit CPI was Cherry's signature.

    [5]The reason for the confusion with number 15 appears to be that in Carrington Road, two neighbouring properties are both numbered 15. The sign on the property at number 13 is numbered 15.

11. She said that she believed they had reached a concluded agreement and was waiting on Ms Pai’s solicitors to incorporate the agreed particulars into the contract of sale. On 9 July 2022 Ms Ek also made a further payment of $12,500 to Ms Pai, and ultimately paid a total amount of $45,500 between June and 1 August 2022 (which she says constitutes part payment of the deposit).

12. Ms Pai’s version is very different, as she disputes that the document she signed contained the figure of $11.85 million. She says that at the meeting of 9 July 2022 she and her husband, Kevin, insisted that the Properties be sold for $12.15 million and ‘we signed’ at the bottom of the first particulars of sale next to the Chinese character meaning vendor which showed her intention to sell at that price. Ms Ek also signed the bottom of the page next to the Chinese character for purchaser. Once signed, she claims that Ms Ek took the signed document back to her office and made handwritten amendments to the document which changed the particulars of sale including the price and the deposit, then initialled the changes, as well as adding the handwritten notes. After making the changes, Ms Ek presented the amended page back to Ms Pai who refused the amendments. On 10 July 2022 they met again and Ms Ek told her that she would not buy the Properties at $12.15 million.

13. The evidence as to the circumstances surrounding the execution of the 9 July Particulars is hence very different. As recognised by the parties, the critical issue is whether the parties signed the 9 July Particulars (which include a revised price of $11.85 million) or the (earlier) first particulars. This issue can only be resolved at trial.

14. Subsequent to 9 July 2022, the parties exchanged various text messages. Then, on 24 July 2022, Red Eagle entered into a contract of sale of the Properties with a new purchaser, Jun Chen, for a price of $12.55 million, with settlement scheduled for 24 October 2022. Ms Pai also says that Jun Chen paid the deposit of $1.255 million on 28 July 2022. However, that contract is not in evidence, and there was no evidence from Jun Chen.

15. On 2 August 2022 Ms Ek lodged the caveat which specified reliance on an agreement with the registered proprietor(s) dated 9 July 2022. By correspondence of 5 September 2022, Ms Ek’s solicitors also wrote to Red Eagle alleging that the 9 July Particulars constituted a contract and asking for details of the trust account into which the deposit was to be paid. Ms Ek undertakes that she will pay an amount equal to five per cent of $11.85 million on provision of relevant bank account details (in addition to the amounts already paid).

16. The proceeds of the deposit paid by Jun Chen were released to Red Eagle on or around 13 September 2022 (after payment of the agent’s commission of $207,075). During the period 10 September to 15 October 2022, Red Eagle also used the deposit proceeds to pay $62,750 in consulting fees payments to Buzlink Consulting Pty Ltd who ‘collaborated’ with the agent to facilitate Jun Chen’s purchase of the Properties.

Judge’s reasons

1. After summarising the factual matrix, relevant legal principles and the parties’ submissions, the judge’s analysis was as follows:[6]

   [6]At 45–8 of the Revised Ruling given ex tempore on 21 October 2022.

   In my view, Ms Ek has failed to discharge the burden of showing she has a prima facie case with sufficient likelihood of success to justify the maintenance of the caveat. My conclusion is reached on a consideration of the particulars of sale, the document which is relied upon by Ms Ek as the basis of her asserted caveatable interest as purchaser under a contract of a sale. It does not require me to resolve disputed facts or matters of credit.

   The indicia of objective intention available from a consideration of the face of the particulars of sale do not, in my view, support Ms Ek’s position that the parties intended the document to be a binding contract. These indicia include the absence of Ms Pai’s initials, including against changes made to the price and deposit. I disagree with Mr Mitchell's submission that this does not undermine Ms Ek’s prima facie case.

   At trial, Ms Ek would have to establish that the amendments were agreed to by Red Eagle. On the face of the document and considering the presence of the initialling of the amendments by Ms Ek, but the absence of initialling by Ms Pai, in my view, Ms Ek’s prima facie case in this regard is weak.

   Mr Mitchell’s submission that it is left to the purchaser to decide whether she pays 3, 4, 5 per cent or something in between is, in my view, not supported on the face of the document. There is nothing to indicate at whose election the amount of the deposit within that range can be decided. I consider Ms Ek’s prima facie case on certainty in this regard is weak.

   In relation to the time for payment of the balance of the purchase price, again a range is provided but without any indication of, for example, whether it is the purchaser or the vendor who decides when settlement falls within that range. I do not accept Mr Mitchell’s contention that in these respects the terms are agreed, it is simply the mechanism that is not. This is my view, accepting the proposition that courts strive to give certainty to contracts.

   It is objectively apparent from the existence of unresolved matters on the face of the document that the defendant’s position, that the document is a final agreement enforceable and not uncertain, is weak. This was highlighted by the discussion that took place at the conclusion of the hearing.

   What deposit would Ms Ek pay, should a caveat be maintained, if Ms Ek issued proceedings for specific performance. Ms Ek’s solicitors in correspondence appear to have nominated the deposit payable as 3 per cent of the amended purchase price. Mr Mitchell confirmed that this is the deposit that the defendant is willing and able to pay.

   Of course, Red Eagle disagrees. There is, as I have said, nothing on the face of the document that assists the court to form a view as to whether Ms Ek by paying 3 per cent deposit has performed her obligations in that regard.

   Balance of convenience.

   In my view, the balance of convenience favours Red Eagle. A binding contract of sale has been entered into with a third party, settlement is due to take place this Monday, 24 October 2022. Ms Pai has deposed that the deposit of $1.255m was paid on 28 July 2022.

   It was released to the plaintiff through a signed section 27 statement on around 13 September 2022. The agent has deducted his commission, payments have been made to other third parties by the plaintiff from the balance of the deposit. Any loss and damage suffered by the third party purchaser would likely be the subject of litigation.

   I have considered Ms Ek’s evidence on affidavit that she wants the property so that she can move into it and conduct her business from there. An order directing the removal of the caveat will mean that she loses that property. She has offered an undertaking as to damages. Nevertheless, in my view, the cumulative weight of the issues raised on the face of the particulars of sale do not support an objective intention of the parties to be bound.

   I consider the caveator, Ms Ek, has not satisfied her burden to show a prima facie case with sufficient likelihood of success to justify the practical effect which the caveat will have on the ability of Red Eagle, the registered proprietor, to deal with the properties in accordance with its normal proprietary rights, in particular, to settle the sale of the property on Monday. I will make the orders sought by the plaintiff.

Proposed grounds of appeal

1. The applicant ultimately sought leave to appeal the judge’s decision on the following two grounds:

   1. The primary judge made specific error in finding that the prima facie case that the applicant had an interest in land arising from an enforceable contract of sale was weak.

   Particulars

   The primary judge erred by considering that the strength of the applicant’s prima facie case was diminished by:

   (a)the term of the agreement specifying the deposit as 3–5% of the purchase price;

   (b)the term of the agreement fixing settlement as 9–12 months after entry into the contract; …

   (e)the fact that handwritten notations on the agreement had only been initialled by the purchaser and not on behalf of the vendor.[7]

   2. The primary judge’s decision was so unreasonable that the Court should infer a failure to properly exercise the discretion committed to the primary judge under s 90(3) of the Transfer of Land Act 1958 (Vic).

   [7]The following two grounds were abandoned at the hearing:

   (c) the fact that the parties had not agreed on a mechanism by which ‘market value’ would be determined;

   (d) the fact that the whole of the deposit had not been paid on time, where no notice of rescission had been given by the vendor/respondent;

General principles

1. Section 90(3) of the Transfer of Land Act 1958 permits any person adversely affected by a caveat to ‘bring proceedings in a court against the caveator for the removal of the caveat’ and empowers the court dealing with such an application to ‘make such order as the court thinks fit’. As this Court has previously observed,[8] the court’s power under s 90(3) is discretionary, and therefore an applicant who seeks leave to appeal against an exercise of that discretion must establish an error of the kind identified in House v The King.[9]

   [8]See Carbon Black Lab Pty Ltd v Launer [2015] VSCA 126, [39] (Santamaria, Ferguson and McLeish JJA); Lee v Yap [2021] VSCA 297, [78] (Kyrou, McLeish and Walker JJA) (‘Lee’).

   [9](1936) 55 CLR 499; [1936] HCA 40 (‘House’).

2. It was also not in dispute that, when considering an application under s 90(3), the court applies the two-stage test used for determining an application for an interlocutory injunction. This is explained in a passage from Warren CJ’s judgment in Piroshenko v Grojsman[10] as follows:

   Caveats under the Torrens system are treated by the courts as analogous to applications for interlocutory injunctive relief. In so far as their registration is an administrative act, it is when application is made for their removal that the onus falls on the caveator to satisfy the two-stage test used by the court when deciding whether to exercise its discretion to grant interlocutory injunctive relief… This two-stage approach requires the caveator to establish that there is a serious question to be tried that they have the estate or interest which they claim in the land in question, and having done so, to establish that the balance of convenience favours the maintenance of the caveat on the Register of Titles until trial.[11]

   [10](2010) 27 VR 489; [2010] VSCA 240.

   [11]Ibid 491 [7].

Ground 1

1. In coming to the conclusion that the applicant’s case did not have sufficient likelihood of success to justify the practical effect of the caveat, the judge, first, considered that the absence of initialling by Ms Pai meant that the prima facie case was ‘weak’. This finding is relevant to ground 1(e).

2. It is true that the absence of Ms Pai’s initials is a matter that a trial judge might consider in determining whether Ms Pai had really executed the 9 July Particulars. However, the judge was not required to consider this matter on an application to remove a caveat. Not only was this not required, it is ordinarily not appropriate for a judge to enter into a resolution of the underlying factual dispute on this sort of application at all.[12] This is particularly so where the resolution of the dispute will turn on findings as to the credit of witnesses. Thus, the judge was not in a position to assess the key issue as to whether the parties signed the 9 July Particulars or the first particulars document. In fact, the judge correctly acknowledged this given that she expressly stated that she was not required to resolve disputed facts or matters of credit.

   [12]Lee [2021] VSCA 297, [80] (Kyrou, McLeish and Walker JJA).

3. However, notwithstanding the judge’s careful acknowledgment, she has gone further than was appropriate, and has endeavoured to reach a finding about the strength of the key issue in the case. In so doing she has considered a discrete feature of the 9 July Particulars (the absence of Ms Pai’s initials), without regard to the other evidence. Such other evidence included the direct sworn evidence of Ms Ek.

1. Even if the judge was in a position to assess the merits of the key issue, there could be no assessment on a prima facie basis, or otherwise, by having regard to only one isolated piece of evidence. In endeavouring to undertake an assessment of the case, the judge has hence used one piece of evidence in a selective and inappropriate way and has acted upon a wrong principle.[13] She thereby erred in her treatment of the evidence that the 9 July Particulars had only been initialled by the purchaser (ground 1(e)).

   [13]House (1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.

2. Turning then to grounds 1(a) and (b), the judge also considered that the ranges provided in respect of both the deposit (3–5 per cent) and settlement date (9–12 months) meant that the prima facie case on certainty was ‘weak’ because there were ‘unresolved matters’.

3. However, it is only if the court is unable to put any definite meaning on a contract that it can be said to be uncertain.[14] Further, although it is an objection to a contract if one party is left to choose whether he or she will perform it,[15] this may be distinguished from a situation where a contract leaves one party with a latitude of choice as to the manner in which performance will take place.

   [14]Meehan v Jones (1982) 149 CLR 571, 578 (Gibbs CJ); [1982] HCA 52 (‘Meehan’).

   [15]Ibid 589–90 (Mason J), 581 (Gibbs CJ).

4. This distinction is explained in the decision of the High Court in Thorby v Goldberg,[16] where an agreement was upheld although one party was given considerable discretion as to how it carried out its obligations. Kitto J (with McTiernan and Windeyer JJ agreeing) stated:

   But an agreement is not void for uncertainty because it leaves one party or group of parties a latitude of choice as to the manner in which agreed stipulations shall be carried into effect, nor does it for that reason fall short of being a concluded contract. Nothing is here reserved for the determination by future agreement of the O and the G Groups. They have agreed upon all that they intend to be the subject of agreement between them. The case of Loftus v Roberts, which was much pressed upon us, has no application here. It decides only that where words which by themselves constitute a promise are accompanied by words which show that the promisor is to have a discretion or option as to whether he will carry out that which purports to be the promise, the result is that there is no contract on which an action can be brought. Such a situation does not exist in the present case.[17]

   [16](1964) 112 CLR 597; [1964] HCA 41 (‘Thorby’).

   [17]Ibid 605, citing Loftus v Roberts (1902) 18 TLR 532; see also Menzies J (Owen J agreeing) at 613.

5. Thorby was more recently cited in Lewandowski v Mead Carney-BCA Pty Ltd,[18] where the NSW Court of Appeal held that a promise to pay a salary ‘within a range of $7,000 and $9,000 per annum’ was not illusory as the promise involved an obligation to pay a minimum salary of $7,000 per annum. In the lead judgment, Jacobs P considered that the case was analogous to the problem dealt with in Thorby and said:

   The choice or discretion which is given to the defendant in selection of a salary arises directly from the form of the obligation which the defendant undertakes. This is an obligation to make an offer of employment at a salary within a certain range. There is implicit in these words, without any implication of a separate term of the contract, an obligation at least to offer the minimum salary. This would be a performance within the terms of the obligation.[19]

   [18][1973] 2 NSWLR 640 (‘Lewandowski’).

   [19]Ibid 642 (Hardie and Bowen JJA agreeing).

6. The decision of Lewandowski has been cited in other cases.[20] We also do not accept (as the respondent submitted) that the case should only have application in an employment context. It is consistent with the general principles espoused by the High Court in Thorby.

   [20]See, eg, Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130, 136 (Kirby P); see also 151 (McHugh JA).

7. Returning to the present case, it was not suggested that the 9 July Particulars leave the purchaser with a discretion as to whether to pay the deposit, or whether to settle the contract (which could be objectionable). Rather, the main complaint appeared to be the lack of identification of the person given the choice to determine the figure within the range specified. However, the identification of that person is capable of resolution, consistent with the general approach of upholding contracts.[21] There is authority, for example, that it is the promisor who usually has the right to elect which of the methods of performance they will choose[22] (although this may need modification in respect of the time for settlement, given this will depend on mutual obligations).

   [21]Meehan (1982) 149 CLR 571, 589 (Mason J); [1982] HCA 52.

   [22]Timmerman v Nervina Industries (International) Pty Ltd [1983] 2 Qd R 261, 262 (Douglas J, with Kelly and Sheahan JJ agreeing); Malago Pty Ltd v AW Ellis Engineering Pty Ltd [2012] NSWCA 227, [27] (Macfarlan JA, with Bathurst CJ and Meagher JA agreeing).

8. The specification of ranges for the deposit and settlement date may therefore mean that issues will arise in the construction of the 9 July Particulars. This must ultimately be determined by the trial judge, in accordance with orthodox contractual construction principles. However, it says nothing about whether the 9 July Particulars gave rise to a binding contract in the first place.

9. We are acutely aware that the judge made her decision in very urgent circumstances without the benefit of full argument. Further, that she has given her reasons ex tempore. Nevertheless, her conclusion that the prima facie case was ‘weak’ by reason of ‘uncertainty’ has apparently been reached without regard to the principles we have cited. She has thereby fallen into error by failing to have regard to relevant considerations.[23]

   [23]House (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.

10. There was some debate about whether the judge also relied on a further factor in her assessment of the prima facie case, namely the mechanism by which ‘market value’ would be determined. For the sake of completeness, we do not consider this to be the case. However, it is unnecessary to deal with this matter since we are satisfied that each of the matters we have identified (being the absence of Ms Pai’s initials and the specification of the ranges) played a significant, if not determinative, role in the assessment of the prima facie case. They also affected the judge’s assessment of the balance of convenience.

11. In such circumstances, grounds 1(a), (b) and (e) were sustained, and it is unnecessary to consider ground 2. It is also unnecessary to consider a further submission made by the applicant during oral submissions to the effect that there was a binding contract on Ms Pai’s version in any event for a contract price of $12.15 million (given that she executed the first particulars of sale which contained this price).

12. Rather, we determined that leave to appeal should be granted and that the appeal would be allowed.

Disposition

1. Given the urgency of this case, and that this Court has before it the evidence and submissions that were before the judge, it is appropriate for this Court to exercise afresh the discretion under s 90(3) and determine whether the caveat should be removed. The parties generally accepted that this was the appropriate course.

2. In this context, the respondent invited the Court to decide for itself that the prima facie case was weak, relying on a number of features said to support this position. In particular, the respondent submitted that there was a failure to agree on the deposit, settlement date and mechanism for determining the market value to ascertain if the additional $300,000 was payable. This not only meant that critical terms were missing, but also suggested that there was no intention to be finally bound. The respondent also relied on conduct post-dating the date of the 9 July Particulars. This included a text message from Ms Ek on 24 July 2022, which asked Ms Pai to prepare the contract of sale as soon as possible and stated that there was ‘no contract so far’. The respondent also relied on the failure to pay the deposit.

3. We have already dealt with the complaints about the deposit and the settlement date. The submission about the payment of the additional $300,000 also lacked merit. The courts are routinely called upon to determine the market value of properties and will readily supply machinery when parties have failed to state the basis on which a value is to be determined.[24]

   [24]Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 444, 465; citing Milnes v Gery (1807) 14 Ves Jun 400; Talbot v Talbot [1968] Ch 1; Brown v Gould [1972] Ch 53.

4. Insofar as there was reliance on material which post-dated the contract, post-contractual conduct can be admissible on whether the parties intended a contract to be binding in limited circumstances.[25] Suffice to say for present purposes, however, that there was conflicting material which may again be the subject of cross-examination at trial. By way of example, on 1 August 2022, Ms Pai stated that the private ‘agreement’ between the parties was ‘cancelled’, which may support the existence of the agreement. Ms Ek has also provided an explanation for the non-payment of the full amount of the deposit (that she was awaiting bank account details) which can only be properly tested at trial.

   [25]Molonglo Group (Australia) Pty Ltd v Cahill [2018] VSCA 147, [132] (Maxwell ACJ, Whelan and Kyrou JJA); citing Queensland Phosphate Pty Ltd v Korda [2017] VSCA 269, [37] (Tate and Beach JJA and Sifris AJA).

5. It is again inappropriate to consider these matters further since this is not the occasion for the final determination of disputed factual issues. Suffice to say that the 9 July Particulars suggest that there is a serious question to be tried as to whether Ms Ek has the interest she claims.

6. Given there is an arguable case, the critical question rather turns on where the balance of convenience lies. In considering this issue, the following evidence of Ms Ek is significant:

   Available commercial properties for sale in Box Hill are very rare, and particularly multiple adjoining properties. My intention is that the dental practice that I own, which operates from Level 2, 43 Carrington Road Box Hill would move to one of those tenancies (as one is self-occupied by the vendor). There is better foot traffic from the ground floor.

7. The applicant’s solicitor, Ms Tran, also confirmed that the applicant still wishes to purchase the Properties so that she can relocate her dental practice into one of the shops on the title. Further, she maintains that it is ‘very rare’ to find three adjacent commercial tenancies in the heart of Box Hill’s retail zone and Ms Ek does not know if she will find a similar property at any time in the future.

8. The respondent sought to criticise this evidence, suggesting that it was mere ‘opinion’ and/or ‘assertion’. In particular, it suggested that the Properties were surrounded by similar commercial properties; that there was no claim that the Properties were unique; that the applicant conceded it was difficult to quantify the hypothetical advantage she relied on; and that the applicant was willing to walk away from the purchase if the price was not right. The respondent also highlighted the interests of the purchaser, Jun Chen, and the dissipation of funds to third parties, including the estate agent.

9. It is proper to have regard to the interests of the other purchaser, although there was no evidence that the Properties were of particular value to Jun Chen (given that there was no affidavit from this purchaser). It is also true that the vendor has dissipated funds to third parties, though the applicant’s undertaking as to damages may be called upon in this respect. As indicated already, the applicant has also undertaken to pay an amount equal to five per cent of the purchase price of $11.85 million, and further undertook to expeditiously commence and prosecute a proceeding for specific performance of the alleged contract.

10. Moreover, the evidence of Ms Ek, and her solicitor, was unchallenged, and not the subject of objection. It suggested that available commercial properties for sale in Box Hill like this were very rare and that the foot traffic would be better for Ms Ek’s existing dental practice. The absence of ready quantification is also not helpful to the respondent since it suggests that damages are not adequate. Further, the fact that a business woman would negotiate to obtain a more favourable price says little about the importance of the Properties to her.

11. The matter is finely balanced. However, we are of the view that the lower risk of injustice[26] is to maintain the caveat until a proper determination can be made of the interests of all relevant parties.

    [26]Bradto Pty Ltd v State of Victoria (2006) 15 VR 65, 73 [35] (Maxwell P and Charles JA); [2006] VSCA 89.

12. We therefore made the following orders:[27]

    [27]These orders are subject to the undertakings given by the applicant, as described above.

    (1)Leave to appeal is granted.

    (2)The appeal is allowed.

    (3)Paragraphs 3 and 4 of the orders of the County Court made on 21 October 2022 are set aside, and in lieu thereof there be orders that:

    (a)the plaintiff’s application is dismissed; and

    (b)the plaintiff pay the defendant’s costs of the proceeding on the standard basis.

    (4)The respondent pay the applicant’s costs of the application for leave to appeal and of the appeal on the standard basis.

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ANNEXURE A