JUDGE:	Hargrave J
WHERE HELD:	Melbourne
DATES OF HEARING:	6, 7, 8, 11-15 April 2005
DATE OF JUDGMENT:	23 June 2005
CASE MAY BE CITED AS:	Jenkins v Visualeyes Pty Ltd
MEDIUM NEUTRAL CITATION:	[2005] VSC 218

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SALE OF LAND – Purchaser’s statutory right to avoid contract of sale – Rescission by purchaser – Whether vendor entitled to relief from avoidability – ss.6, 14 Sale of Land Act 1962 (Vic).

CONTRACT – Rectification – One party to a contract a deregistered corporation – Whether deregistered corporation a necessary party to rectification proceeding - Assignment of benefit – Whether assignment agreement manifested intention to effect immediate assignment or mere intention to assign at a later unspecified date – Specific performance - Equitable assignment – Assignor a deregistered corporation – Whether assignor a necessary party to proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Stirling	Hicks & Oakley
For the Defendant	Ms S. Marks	Michael Sandor & Associates

HIS HONOUR:

Overview of Facts and Issues

In October 1990, the plaintiff, Heather Jenkins (“Mrs Jenkins”), was the owner of a property in Kooweerup Road, Yellingbo on which she, together with her husband Tom Jenkins (“Mr Jenkins”), conducted a reception centre and restaurant business known as “Camelot Castle”. For convenience, I will call the land and improvements thereon “Camelot Castle”.

In October 1990, Frantisek (Frank) Olgyay (“Mr Olgyay”) and his wife Helena Olgyay (“Mrs Olgyay”) were, through their company, Visualeyes Pty Ltd (“Visualeyes”), entitled to be registered as the proprietors of three unimproved blocks of land in Daniella Court, Rye in the State of Victoria (“the Rye land”).

In October 1990, George Nagy (“Nagy”), a real estate agent and good friend of Mr and Mrs Olgyay, suggested to Mr and Mrs Olgyay that they should join him in purchasing Camelot Castle and then conducting the reception centre and restaurant business. Following inspections of Camelot Castle by Mr and Mrs Olgyay and Nagy, and certain negotiations, an agreement was reached between Mr and Mrs Jenkins on the one hand and Mr and Mrs Olgyay and Nagy on the other, to the effect that:

(1)Mrs Jenkins would sell nine-tenths[1] of her interest in Camelot Castle to Visualeyes, a company representing the interests of Mr and Mrs Olgyay, and Charnock Properties Pty Ltd (“Charnock”), a company representing the interests of Nagy. The purchase consideration was $1,520,000.
(2)In lieu of the payment of a cash deposit by Visualeyes and Charnock, it was agreed that Visualeyes would transfer the Rye land to a company associated with Mr and Mrs Jenkins, Condor Pacific Consolidated Ltd (“Condor”). A notional value of $300,000 was put on the Rye land for the purpose of calculating the amount of the deposit and the balance of purchase moneys payable in order to complete the sale transaction (the “deposit agreement”).

[1]This was disputed as being part of…

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.

Continue reading Jenkins v Visualeyes Pty Ltd

Details

AGLC: Jenkins v Visualeyes Pty Ltd [2005] VSC 218
Case: [2005] VSC 218
Decision Date: 23 June 2005

CaseChat Overview and Summary

The case of Jenkins v Visualeyes Pty Ltd involved a dispute between the plaintiff, Jenkins, and the defendant, Visualeyes Pty Ltd, concerning the sale of a property. The plaintiff sought to avoid the contract of sale under the statutory provisions of the Sale of Land Act 1962 (Vic) and also sought rectification of the contract to reflect an assignment of the benefit of the contract. Visualeyes Pty Ltd, the vendor, contested these claims, arguing that it was entitled to relief from avoidability and that the plaintiff's attempt to rectify the contract was invalid due to the absence of the deregistered corporation that was one party to the original contract.

The primary legal issues before the court were whether the vendor was entitled to relief from avoidability under sections 6 and 14 of the Sale of Land Act 1962 (Vic) and whether the deregistered corporation was a necessary party to the rectification proceeding. Additionally, the court needed to determine whether the assignment agreement between the parties manifested an intention to effect an immediate assignment or merely an intention to assign at a later unspecified date. Finally, the court had to decide if the plaintiff could seek specific performance and equitable assignment in the absence of the deregistered corporation, which was the assignor.

The court found that the vendor was not entitled to relief from avoidability as the statutory period for rescission had not lapsed. Regarding the rectification, the court held that the deregistered corporation was not a necessary party to the proceeding as the plaintiff's claim was based on the existence of the contract itself, not on the status of any party to the contract. The court further determined that the assignment agreement did not manifest an immediate assignment but rather an intention to assign at a later unspecified date. Consequently, the plaintiff could not seek specific performance or equitable assignment in the absence of the deregistered corporation, which was the assignor.

The court ruled in favour of the plaintiff and ordered that the contract of sale be avoided, and the property be returned to the vendor. The court also declined to order rectification of the contract to reflect the assignment of the benefit of the contract.

Orders