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Joseph Street Pty Ltd v Tan

Joseph Street Pty Ltd v Tan

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Case Copied 17 December 2010 72 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 5948 of 2008

JOSEPH STREET PTY LTD (ACN 094 588 271) JONATHON O'DWYER PRUE O'DWYER	Plaintiffs
v
KHAY TEK TAN GWEK LIENG REGISTRAR OF TITLES	Defendants

AND BETWEEN:

KHAY TEK TAN GWEK LIENG	Plaintiffs by Counterclaim
v
JOSEPH STREET PTY LTD (ACN 094 588 271) JONATHON O’DWYER PRUE O’DWYER	Defendants by Counterclaim

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	11, 12 March, 15, 16, 17 June, 5, 6, 9 and 10 August 2010.
DATE OF JUDGMENT:	17 December 2010
CASE MAY BE CITED AS:	Joseph Street Pty Ltd & Anor v Tan & Anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 586

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SALE OF LAND – Contract - Units on proposed plan of subdivision – Specific performance - Contract subject to implied and express conditions to use best or reasonable endeavours to register plan of subdivision – Whether vendors exercised ”best endeavours” in registering plan of subdivision – Whether defendants entitled to rescind the contract for sale – Estoppel – s. 173 Planning and EnvironmentAct 1987 – Expert witness – Alteration of opinion – Obligation to Court – Order 44.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr G.D. Bloch	Hughes Legal Pty Ltd
For the Defendants	Mr F. Lim	Francis Lim

HIS HONOUR:

Introduction

In September 2005, Mr Jonathon O’Dwyer, the second plaintiff,[1] entered into a contract of sale (“the contract”) with the defendants, Mr Khay Tek Tan and his wife Gwek Lieng (“the vendors”) for the purchase of a unit “off the plan” at 459-461 Mitcham Road, Mitcham. Subsequently, he and the third plaintiff, his wife Prue, were nominated as the purchasers.[2]
[1]In July 2007 Joseph Street Pty Ltd, the first plaintiff, was nominated as the purchaser. Its role can be ignored.
[2]It will be seen that there is an arid issue as to whether Mrs O’Dwyer or Joseph Street has a right to enforce the contract. I have therefore referred solely to Mr O’Dwyer as the purchaser. He was, in fact, the driving force behind the purchase.

The unit was one of 6 constructed on a residential property (“the property”) subdivided by the vendors.

The contract contained a clause enabling Mr O’Dwyer or the vendors to rescind in the event that a plan of subdivision was not registered within 15 months of the date of the parties entering into the contract. In September 2007, the vendors purported to rescind the contract pursuant to that clause.

Mr O’Dwyer now seeks specific performance of the contract. The primary issue is whether the vendors’ rescission is valid. Mr O’Dwyer contends that the rescission is vitiated by the breach by the vendors of the requirement (said to be both express and implied) that they use “best endeavours” to register the plan of subdivision of the property with the Registrar of Titles.

A secondary issue arose in the course of the trial and necessitated its adjournment. The vendors belatedly contended that the…

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: [2010] VSC 586
Decision Date: 17 December 2010

CaseChat Overview and Summary

Joseph Street Pty Ltd sued Tan over a contract for the sale of land on a proposed plan of subdivision. The case was heard by the Supreme Court of Victoria. The dispute centred on whether the vendors had used their best endeavours to register the plan of subdivision and if the purchaser was entitled to rescind the contract. The matter also involved issues of estoppel and the application of section 173 of the Planning and Environment Act 1987.

The court had to determine the extent of the vendors' obligations under the contract to use best endeavours in registering the plan of subdivision. It also considered whether the purchaser could rely on estoppel to prevent the vendors from enforcing the contract. The court examined the vendors' efforts to register the plan, the effect of any failure on the purchaser's rights, and the relevance of section 173 of the Planning and Environment Act 1987. Additionally, the court evaluated the role and obligations of an expert witness who altered their opinion during the proceedings.

In reaching its decision, the court held that the vendors had not exercised their best endeavours to register the plan of subdivision. It found that the purchaser was entitled to rescind the contract due to the vendors' failure. The court also determined that estoppel did not apply in this context. Regarding the expert witness, the court considered the obligation to the court and the implications of altering opinions. Ultimately, the court ordered specific performance of the contract, requiring the vendors to complete the registration of the plan of subdivision within a specified timeframe.

Orders