Landmark Property Enterprise Pty Ltd v Monash Property Developments Pty Ltd - [2015] VSC 266

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
LIST C

S CI 2014 01951

LANDMARK PROPERTY ENTERPRISE PTY LTD (ACN 143 478 844)	Plaintiff
v
MONASH PROPERTY DEVELOPMENTS PTY LTD (ACN 134 577 067) & ORS	Defendants

MONASH PROPERTY DEVELOPMENTS PTY LTD (ACN 134 577 067)	Plaintiff by Counterclaim
v
LANDMARK PROPERTY ENTERPRISE PTY LTD (ACN 143 478 844) & ORS	Defendants by Counterclaim

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May 2015 (with further written submissions on 2 and 5 June 2015)
DATE OF JUDGMENT:	19 June 2015
CASE MAY BE CITED AS:	Landmark Property Enterprise Pty Ltd v Monash Property Developments Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VSC 266	First Revision 22 June 2015

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SALE OF LAND – Contract for the sale of land – Contract varied – Whether contract became a terms contract – Whether contract voidable by purchaser – Australian Horizons (Vic) Pty Ltd v Ryan Land Co Pty Ltd [1994] 2 VR 463 – Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd (2011) 35 VR 1 – Portbury Development Co Pty Ltd v Ottedin Investments Pty Ltd [2014] VSC 57 – Sale of Land Act 1962 ss 29A, 29M, 29N, 29O, 29P, 29S.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D.V. Aghion and Ms D. Costaras	Russell Kennedy
For the First, Third and Fourth Defendants	Mr C.R. Northrop	Goldsmiths Lawyers
For the Third Party	Not represented at the hearing	Obst Legal (written submissions)

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background......................................................................................................................................... 1

The property......................................................................................................................... 1
The contract of sale.............................................................................................................. 2
Extensions of time for completion.................................................................................... 2
Payments by Landmark to Monash.................................................................................. 6
Termination of contract of sale.......................................................................................... 6
The mortgage....................................................................................................................... 7
Post-contract payments by Landmark to Monash.......................................................... 7

Effect of transaction between the parties....................................................................................... 7

Sale of Land Act................................................................................................................................ 11

Application of the Sale of Land Act to the transaction between the parties......................... 20

Section 29M......................................................................................................................... 21
Section 29N......................................................................................................................... 22
Section 29O......................................................................................................................... 24
Section 29P.......................................................................................................................... 25
Section 29S.......................................................................................................................... 26

Conclusions and orders.................................................................................................................. 26

HIS HONOUR:

Introduction

Orders were made on 27 February 2015 for a preliminary hearing in this proceeding for the purpose of determining the following questions (“the separate questions”):

(1)Is the contract of sale a terms contract within the meaning of the Sale of Land Act 1962 (“the SLA”)?
(2)If yes, is the Plaintiff (Landmark) permitted to avoid the contract under s 29N(a) or s 29S(1)(a) of the SLA?

The purpose of isolating and addressing the separate questions was to resolve, at an early stage, critical issues in this proceeding. Depending how these issues are resolved, there is the potential for significant savings in time and cost for the parties.

The parties agreed a statement of facts and agreed documents for the purpose of addressing the separate questions.[1] The factual matters to which reference is made in the reasons which follow are taken from this Statement of Agreed Facts and Documents.
[1]Statement of Agreed Facts and Documents (4 May 2015).

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: [2015] VSC 266
Decision Date: 19 June 2015

CaseChat Overview and Summary

In the case of Landmark Property Enterprise Pty Ltd v Monash Property Developments Pty Ltd, the dispute arose from the sale of land between the two parties. The crux of the matter was whether the original contract for the sale of land had been varied in such a manner that it became a terms contract, and if so, whether the purchaser could void the contract under the provisions of the Sale of Land Act 1962. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the original contract for the sale of land had been replaced by a new contract, and if so, whether this new contract constituted a terms contract. The court also needed to determine if the purchaser could void the contract under the Sale of Land Act 1962. The court considered relevant precedents, including Australian Horizons (Vic) Pty Ltd v Ryan Land Co Pty Ltd, Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd, and Portbury Development Co Pty Ltd v Ottedin Investments Pty Ltd, to address these issues.

The court found that the original contract had indeed been replaced by a new contract, and this new contract was a terms contract. The court held that, under the Sale of Land Act 1962, the purchaser had the right to void the contract if it became a terms contract. Consequently, the purchaser was entitled to terminate the contract. The court emphasised the importance of adhering to the statutory provisions concerning the sale of land to protect the rights of purchasers.

The court ordered that the contract for the sale of land between the parties be voided, and that the purchaser be entitled to a refund of any monies paid under the contract.

Orders