JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	21-22 April 2020
DATE OF JUDGMENT:	15 October 2020
CASE MAY BE CITED AS:	Leahy v Javni
MEDIUM NEUTRAL CITATION:	[2020] VSC 680

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CONTRACT LAW – Sale of Land formation – Offer and acceptance – Conditional offer – Whether defendant made conditional offer – Whether offer withdrawn - Electronic Transactions (Victoria Act) 2000, s 13A.

CONTRACT LAW – Formation – Offer and acceptance – Method of acceptance – Time of acceptance – When is acceptance conveyed to other party.

LEGAL PRACTITIONERS - Scope of authority – Actual or ostensible – Whether authority to receive notice of acceptance of offer.

SALE OF LAND – Cooling off provisions – Vendor’s right to retain percentage of deposit – Whether rights exist when deposit not paid – Sale of Land Act 1962 s 31(4).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W F Gilles	SLM Law
For the Defendant	Mr B Carew	Whyte Just & Moore Lawyers

HIS HONOUR:

Background

The plaintiff, Gail Patricia Leahy, was the owner of a house and property at Eastern Beach Road, Geelong (‘the Property’). Her case is that she entered into a contract to sell the Property to the defendant, Peter Javni, on 15 May 2017 (‘May contract’), but that he defaulted in paying the deposit of $450,000 and that she rescinded the contract because of that default. She claims the sum of $450,000 as a debt. She also claims the sum of $10,000 in respect of a previous contract of sale that she and Mr Javni entered into for the sale of the Property, but which Mr Javni terminated under the cooling off provisions in the Sale of Land Act 1962 (‘SLA’).

Mrs Leahy ultimately sold the Property to a third party for $4,000,000 with settlement occurring on 31 August 2018.

The first contract Mrs Leahy and Mr Javni entered into for the sale of the Property was dated 16 February 2017 for a price of $5,000,000, with a $500,000 deposit payable by 17 February 2017.

On 17 February 2017, Mr Javni by his lawyers, Whyte Just & Moore Lawyers, exercised his cooling off rights under s 31 of the SLA to terminate the first contract. Mrs Leahy claims $10,000, being 0.2 per cent of the purchase price, as her entitlement under the cooling off provisions.

Mr Cross gave evidence that at the time Mr Javni terminated the first contract, he said that he thought that he and his wife were over-extending themselves financially, that he still loved the Property and that he would still pursue it at a lower figure, but ‘couldn’t see value at $5 million’.[1] Mr Javni’s evidence was that he spoke to his wife and that both of them were not interested in purchasing the Property.[2] There was also evidence from the Leahys…

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 Leahy v Javni

Details

AGLC: Leahy v Javni [2020] VSC 680
Case: [2020] VSC 680
Decision Date: 15 October 2020

CaseChat Overview and Summary

Leahy and Javni were parties in a dispute that came before the court. Leahy claimed that Javni had made an offer to sell land to Leahy under specific conditions, and that Javni had subsequently withdrawn that offer before Leahy could accept it. The case hinged on whether Javni had indeed made a conditional offer and whether that offer had been effectively withdrawn. The court also considered whether the acceptance of the offer was properly conveyed and received in accordance with the Electronic Transactions (Victoria Act) 2000, s 13A.

The central legal issues in the case were the identification and acceptance of a conditional offer, the method and timing of acceptance, and the authority of the parties involved in the communication of the offer and its acceptance. The court had to determine if the conditions placed on the offer by Javni were sufficient to constitute a conditional offer, and if the offer was properly withdrawn. Additionally, the court examined whether the acceptance was communicated in a timely manner and whether the party receiving the acceptance had the authority to do so.

The court found that Javni did indeed make a conditional offer, which was subsequently withdrawn before Leahy could accept it. The court ruled that the method of communication used to withdraw the offer complied with the Electronic Transactions (Victoria Act) 2000, s 13A. The court also held that the authority of the party receiving the notice of withdrawal was sufficient to bind the parties to the agreement. In light of these findings, the court determined that Leahy’s claim was not valid.

The court ordered that Leahy take no further action in relation to the claim for breach of contract against Javni. The court also ruled that Javni was not liable for any costs incurred by Leahy in relation to the claim.

Orders