Jessup v Fremder - [2001] VSC 100

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 4847 of 2001

SUZANNE JUNE JESSUP AND ANOTHER	Plaintiffs
v.
HARRY FREMDER	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 MAY 2001
DATE OF JUDGMENT:	15 MAY 2001
CASE MAY BE CITED AS:	JESSUP & ANOR. v. FREMDER
MEDIUM NEUTRAL CITATION:	[2001] VSC 100

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CATCHWORDS: Sale of Land – Construction of contract – Sale conditional upon grant of permit to sub-divide property – No time specified for grant of permit – Reasonable time.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr. D.J. O'Callaghan	Deacons
For the Defendant	Mr. M. Clarke	Mulcahy Mendelson & Round

HIS HONOUR:

The defendant Harry Fremder is the owner of a comparatively large property at 22 Kooyong Road, Armadale (the property).

At some time prior to 25 July 2000 Fremder decided that he would sub-divide the property into two separate allotments and then sell off allotment No. 2.

In due course an appropriate preliminary sketch of the proposed sub-division was prepared and the defendant placed the sale of allotment No. 2 into the hands of a real estate agent Marshall White & Co. Pty. Ltd.

On 25 July 2000 the plaintiffs Suzanne Jane Jessup and Julian Craig Brown entered into a contract with the defendant whereby they agreed to purchase allotment No. 2 from the defendant for $600,000. That same day they paid to Marshall White Pty. Ltd. a deposit of $60,000.

The contract contains in it a copy of the proposed plan of sub-division and the following provisions.

1. Balance of $540,000 (a) on 23 October 2000
(b)or within 14 days of the title being issued by the Registrar of Titles whichever is the later

2.Performance by the vendor of his obligations pursuant to the contract is subject to the grant by the Stonnington Council of a permit to subdivide the property known as 22 Kooyong Road in accordance with the attached plan.

Shortly after the contract was executed the defendant made application to the City of Stonnington for a permit to sub-divide the property into the two allotments.

On 31 August 2000 the City of Stonnington notified the defendant that it had decided to grant the permit but that the permit had not been issued and could not be issued until after the period within which an objector might lodge an application for review or if after an application was made within that period, until the application for review had been determined by the Victorian Civil and Administrative Tribunal (VCAT).

Certain of the owners of neighbouring properties then objected to the issue of the permit and the objections were referred to VCAT.

At the end of October 2000 VCAT listed the matter for hearing on 14 December 2000.

On 3 November 2000 the defendant's solicitors sent the following letter to the solicitors for the plaintiffs:

"3 November 2000
Deacons
Lawyers
Level 24
385 Bourke Street
MELBOURNE, 3000.
Dear Sirs,
FREMDER TO JESSUP AND BROWN
UNIT 2, 22 KOOYONG ROAD,…

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 Jessup v Fremder

Details

AGLC: Jessup v Fremder [2001] VSC 100
Case: [2001] VSC 100
Decision Date: 15 May 2001

CaseChat Overview and Summary

In the case of Jessup v Fremder, the dispute before the court involved a contract for the sale of land, with a condition precedent that the sale was contingent upon the grant of a permit to sub-divide the property. The primary issue was the determination of what constituted a reasonable time for obtaining such a permit when no specific time was specified in the contract. The case was heard and decided in the Supreme Court of Victoria.

The legal issues central to this case were whether the time taken by the vendor to secure the permit was reasonable and, if not, whether the purchaser was justified in terminating the contract. The court was tasked with interpreting the contract terms, particularly the condition precedent, and assessing whether the vendor's actions were consistent with what could be considered a reasonable period for obtaining the permit.

The Supreme Court of Victoria found that the vendor had not acted within a reasonable time to secure the permit, and this delay justified the purchaser's decision to terminate the contract. The court held that while the contract did not specify a particular timeframe for obtaining the permit, it was implicit that the permit should be obtained within a reasonable period. The vendor's prolonged delay in securing the permit was deemed unreasonable, leading the court to conclude that the purchaser was entitled to terminate the contract. The court's decision hinged on a detailed analysis of the contract terms and the circumstances surrounding the permit application process.

The final orders of the court declared the contract to be terminated, with the purchaser entitled to a refund of the deposit paid. The court did not order any further action regarding the permit or the property itself, as the primary issue of reasonable time had been resolved in favour of the purchaser.

Orders