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Lo v Russell

Lo v Russell

Case [2016] VSCA 323 16 December 2016

Contract Formation

Breach of Contract

Admissibility of Evidence

Interpretation of Statutes

Property Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0089

CHENG LO	First Applicant
and
ENG KIAT TAN	Second Applicant
v
THOMAS JOHN RUSSELL	Respondent

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JUDGES:	WARREN CJ, TATE and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 October 2016
DATE OF JUDGMENT:	16 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 323
JUDGMENT APPEALED FROM:	[2016] VSC 93 (Cameron J)

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REAL PROPERTY – Applicants contracted to purchase land owned by respondent – Applicants purported to exercise cooling-off right by sending notice of termination to respondent’s estate agent – Whether notice of termination effective – Whether ‘agent’ in Sale of Land Act 1962 s 31 includes estate agent.

REAL PROPERTY – Contract of sale of land substantially conforming to standard form contract of sale of real estate contained in Estate Agents (Contracts) Regulations 2008 sch – Cooling-off right under Sale of Land Act 1962 s 31 – Whether contract permitted service of notice of termination on respondent’s estate agent – Appeal allowed.

CONTRACT – Interpretation of terms giving effect to statutory requirement – Whether contract may go further than statute requires – Digby v General Accident Fire and Life Assurance Corporation Ltd [1943] AC 121, 141; Fawcett v BHP By-Products Pty Ltd (1960) 104 CLR 80, 89–90, applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr P Best with Mr P R Miller	Kalus Kenny Intelex
For the Respondent	Mr R Hay QC with Mr R T Wodak	Dellios West & Co

WARREN CJ
TATE JA
McLEISH JA:

The applicants, Mr Eng Tan and Dr Cheng Lo, purchased a property located at 43 Erin Street, Richmond pursuant to a contract of sale with the respondent vendor, Dr Thomas Russell. A few days later, they sought to exercise their cooling‑off right under s 31 of the Sale of Land Act 1962 (‘SLA’) to terminate the contract. The manner of their doing so was said by the respondent to be ineffective. After a three-day trial, a judge in the Commercial Court agreed.[1] The applicants now seek leave to appeal.
[1]Tan v Russell [2016] VSC 93 (‘Reasons’).

Background

The respondent decided to sell the property in early 2014. On 26 February 2014, he signed an exclusive auction authority appointing Marshall White Real Estate (‘Marshall White’) as estate agents for the sale. Mr Andrew Gibbons of Marshall White was appointed to look after the property. He was assisted by Mr Chris Burne, an employee of Collins Simms, a real estate agency associated with Marshall White.

The applicants were interested in purchasing the property for use by Dr Lo and his wife, Dr Elaine Chong, as a medical practice. The applicants and Mr Tan’s wife, Dr Jean Low, inspected the property on 29 March 2014. After a subsequent inspection by Mr Tan and an architect, on 3 April 2014 Mr Tan and Mr Gibbons exchanged text messages regarding the proposed purchase of the property. On that date, the applicants made an offer to Mr Gibbons to purchase…

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 Lo v Russell

Details

AGLC: Lo v Russell [2016] VSCA 323
Case: [2016] VSCA 323
Decision Date: 16 December 2016

CaseChat Overview and Summary

The applicants, Lo and others, had entered into a contract for the purchase of land owned by the respondent, Russell. They purported to exercise their right to terminate the contract by sending a notice of termination to the respondent’s estate agent, as provided under the Sale of Land Act 1962. The dispute centred on whether the notice of termination was effective and if the term 'agent' in section 31 of the Sale of Land Act included an estate agent. The Court of Appeal was tasked with determining these legal issues.

The legal issues before the court were whether the notice of termination sent to the estate agent was effective and if the term 'agent' in section 31 of the Sale of Land Act 1962 encompassed an estate agent. Additionally, the court had to consider whether the contract of sale permitted the service of the notice of termination on the respondent’s estate agent, given that the contract conformed to the standard form contract of sale of real estate as outlined in the Estate Agents (Contracts) Regulations 2008.

The court held that the notice of termination sent to the estate agent was effective. The court interpreted the term 'agent' in section 31 of the Sale of Land Act 1962 to include an estate agent, aligning with the statutory requirement. The court applied the principles from Digby v General Accident Fire and Life Assurance Corporation Ltd and Fawcett v BHP By-Products Pty Ltd to conclude that the contract could not restrict the statutory right to terminate beyond what the law required. The appeal was allowed, and the applicants’ right to terminate the contract was upheld.

The final orders of the court were not explicitly detailed in the text, but the outcome effectively allowed the applicants to exercise their right to terminate the contract for the purchase of the land.

Orders