MA v Tasevski
[2023] VCC 737
•12 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-22-00119
| KEVIN VINH THANH MA also known as Kevin Ma | Plaintiff |
| v | |
| SLAVOLJUB TASEVSKI also known as Slavo Tasevski | Defendant |
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JUDGE: | Her Honour Judge Brimer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 February 2023 | |
DATE OF JUDGMENT: | 12 May 2023 | |
CASE MAY BE CITED AS: | Ma v Tasevski | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 737 | |
REASONS FOR JUDGMENT
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Subject:CONTRACT
Catchwords: Contract of sale of real estate – sale of apartment and accessory lot – contract signed by vendor and purchaser – purchaser paid deposit to vendor’s agent – purchaser required to pay deposit to vendor’s agent under contract – vendor unhappy with contract terms – vendor purported to “cancel” or terminate contract by email to vendor’s agent and vendor’s conveyancer – vendor claimed agency authority gave right to terminate contract – vendor had no right to terminate contract – purchaser made several calls for vendor to settle – settlement did not occur on settlement date – vendor made broad allegation of collusion between vendor’s agent and purchaser – vendor’s agent advised vendor that purchaser will lodge caveat if he tried to terminate contract and purchaser did lodge caveat – no evidence of collusion – specific performance – purchaser ready, willing and able to settle – considered as at settlement date, date of trial and in between – damages not an adequate remedy – land is unique – hardship not pleaded
Legislation Cited: Civil Procedure Act 2010 (Vic) s 48(2)(e); County Court Civil Procedure Rules 2018 (Vic) r 24.02
Cases Cited:Argus Administration Pty Ltd v Caldwell [2018] QSC 281; Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497; Carydis v Merrag Pty Ltd [2007] NSWSC 1220; Green v Sommerville (1979) 141 CLR 594; Humphris v ConnectEast Nominee Co Pty Ltd [2019] VSCA 3; Lo & Anor v Russell [2016] VSCA 323; Mehmet v Benson (1965) 113 CLR 295; Mould v Canale [2017] VSC 793; Pianta v National Finance and Trustees (1994) 180 CLR 146; Poulos v Svoboda [2005] NSWSC 364; Rossi Recycling Pty Ltd v Buckland Valley Pty Ltd & Anor [2022] VSC 467; Sara Investments (NSW) Pty Ltd v West Asset Holdings Pty Ltd [2022] NSWCA 207; Sommers v Pearse (NSWCA, 16 December 1993 unreported, BC9302367); Trident General Insurance Co Ltd v McNeice Bros Pty Ltd (1988) 165 CLR 107; West Asset Holdings Pty Ltd v Sara Investments (NSW) Pty Ltd [2022] NSWSC 674; Zhu v Snell [2014] NSWSC 468
Judgment: Judgment for the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr K E Mihaly | Lily Ong |
| For the Defendant | Mr S Tasevski (self-represented) | — |
HER HONOUR:
Introduction
1By contract dated 9 February 2021, Slavoljub Tasevski (Mr Tasevski)[1] agreed to sell the property at Unit 23 / 23 King Edward Avenue, Albion in the State of Victoria (the Property)[2] to the plaintiff, Kevin Vinh Thanh Ma (Mr Ma) (the Contract).[3] Steven Nguyen (Mr Nguyen) of MFS Real Estate (MFS) was Mr Tasevski’s real estate agent.[4]
[1] Mr Tasevski was and remains the registered proprietor of the Property as executor of Bozo Tasevski’s
estate. See Exhibits C (Death Certificate), D (Probate Application) and E (Will of Bozo Tasevski). Bozo Tasevski is Mr Tasevski’s brother who passed away on 10 July 2019.
[2] The Property consists of two Certificates of Title: Volume 9357 Folio 699 (an apartment) (CB 144-151)
and Volume 9357 Folio 717 (an accessory lot / car space) (CB 152-159).
[3] CB 79-93.
[4] On 7 October 2020, Mr Tasevski engaged Mr Nguyen of MFS to sell the Property: CB 75-78.(the Agency Authority). Neither MFS nor Mr Nguyen were parties to the proceeding. Mr Tasevski did not
join MFS or Mr Nguyen as defendants. Mr Nguyen was not a witness in the proceeding.
2Mr Tasevski failed to settle the Contract on 1 July 2021 (settlement date). Mr Ma, by his Statement of Claim seeks an order for specific performance of the Contract, interest and costs. Mr Tasevski seeks orders that the case be dismissed, the purchaser’s caveat lodged 21 April 2021 be removed and damages.
3For the reasons set out below, I find for the plaintiff.
Background
4The Contract was prepared by Devonshire Conveyancing (Devonshire), Mr Tasevski’s conveyancer.[5] Relevantly, the terms of the Contract provided that:
(a) the contact price was $265,000;
(b) a deposit of $26,500 was payable;
(c) settlement was to take place on 1 July 2021; and
(d) the Contract was unconditional.
[5] On a date prior to 9 February 2021, Mr Tasevski engaged Devonshire to act as his conveyancer with
respect to the Property.
5On 11 February 2021, Mr Ma paid the deposit of $26,500 to MFS.[6]
[6] CB 94, 95.
6During the trial Mr Hans Ma, Mr Ma’s father (Mr H Ma) gave evidence that a couple of weeks after the Contract was executed, he received a telephone call from Mr Nguyen in which he said that if Mr Ma wanted to proceed with the Contract he would have to pay an extra $10,000 or provide MFS with his bank account details and they would refund the deposit.[7] Mr H Ma responded to the effect that the written agreement would have to be honoured and referred Mr Nguyen to Rebecca Sant (Ms Sant) of Riverside Property Conveyancing (Riverside), Mr Ma’s conveyancer.[8]
[7] T 88.15-20 (Hans Ma XN).
[8] T 90.3-9 (Hans Ma XN). Mr H Ma also gave evidence that a couple of weeks after receiving the telephone call from Mr Nguyen, he received a telephone call from Mr Nguyen’s “subcontractor”, in which he said that his manager was in trouble with the vendor and needed help to “withdraw the agreement” and return the deposit. Mr H Ma reiterated his expectation that the agreement would be honoured and referred him to Ms Sant. T 90.13-25 (Hans Ma XN). I have included the evidence of the content of the phone calls in the Background section as context for the email of 24 February 2021 set out in [7] and what occurred subsequently. However, I have relied on the content of the 24 February 2021 email (tendered by Mr Tasevski) only.
7On 24 February 2021, Mr Nguyen sent an email to Mr H Ma, copying Ms Sant. Mr Ma was “informed about that email” but it was not directly sent to him.[9] Mr Nguyen wrote:
“Dear Hans
Apologies for the inconvenience,
The Vendor wishes to withdraw the sale. He said four months is too long to wait. Unless the offer is $275,000
Please send me your bank account, I will transfer back $26,500. Thank you.
We are very grateful for your support. Thank you for the opportunity to be of your service.”[10]
(the 24 February 2021 email)
[9] T 61.1-4 (Kevin Ma XXN).
[10] Exhibit 1, document S2.
8Mr Tasevski denied that he gave Mr Nguyen instructions that the four month settlement was too long unless the offer was $275,000.[11] Mr Tasevski said he did ask Mr Nguyen to terminate the Contract but Mr Nguyen did not want to do it officially.[12]
[11] T 42.1-4 (Sant XXN).
[12] T 43.4-6 (Sant XXN).
9On the same day, 24 February 2021, Ms Sant replied to Mr Nguyen’s email, stating:
“Hi Steven,
Further to your email below we note that as your (sic) are a licenced state agent, you are well aware that a Vendor cannot cancel a fully executed Contract of Sale.
The Vendor has signed the Contract and agreed to the terms noted therein. Such terms being the sale price and the settlement date.
We therefore confirm that the Contract of Sale cannot cancelled (sic) and remains on foot. Our client has however, as show of good faith, advised that should the loan funds be available for settlement earlier then the 1st of July, we will endeavour to settle the matter on an earlier date.
In the meantime I have advised my client to report this conduct to REIV.”[13]
[13] Exhibit 1, document S2.
10On 6 March 2021, Mr Tasevski emailed Devonshire Conveyancing, copying Mr Nguyen, stating:
“To whom it may concern,
I, Slavoljub Tasevski, on the 7/10/2020 signed over authority to ‘MFS Estate’ sell my property at 23/23King Edward Avenue, Albion 3020.
At that time of the agreement being made, both parties had agreed that the reasonable value of the property was $320,000-$350,000 which was clearly stated in the authority contract. However, since then, the agent has attempted to convince me that the market is unfavourable and they could not obtain an offer at the agreed upon price, and if I don’t sell, I may suffer an even greater loss in the future.
Subsequently on 9/2/2021, MFS Estate insisted for me to sign a contract of sale of the property for $265,000, creating a false sense of urgency that if I don’t sign the contract there will be no hope of a further sale. A few days after signing the contract of sale I did a very quick online check of the market for the surrounding area and the advertisement my agent had made for my property. To my disbelief I discovered that my agent had never advertised the agreed upon price of my property, and in fact he went a lot lower than the agreed asking price. Without any prior agreement or discussion with me MFS Estate had actually advertised my property for an asking price below market value of $260,000-$275,000, and subsequently, received an offer of $265,000, which I was forced to agree upon. In
As the agent is in breach of the authority contract, and in breach of the law by advertising a price that is less than the estimated selling price, I hereby:
• Cancel the authority for sale
• Cancel the contract of sale
• Reserve the right for reimbursement for damage done for +$50,000
•Have a right and obligation to report this misconduct to the relevant authorities.
Attached to this email are the Exclusive Selling Agency Authority, and the Contract of Sale.
Slavoljub Tasevski”
(the 6 March 2021 email)[14]
[14] CB 96.
11On 21 April 2021, on instructions from Mr H Ma, Ms Sant lodged a caveat on Mr Ma’s behalf, claiming a freehold estate as purchaser of the Property.[15]
[15] CB 144-151; CB 152-159.
12On 30 April 2021, Ms Sant emailed Devonshire stating: “We are chasing the DOL & PEXA invitations. Please arrange as soon as possible.”[16]
[16] CB 101-102.
13On 10 May 2021, Devonshire emailed Ms Sant stating: “Our client has already advised the agent of contract cancellation.”[17]
[17] CB 100-101.
14On the same day, Ms Sant emailed Devonshire stating:
“Sorry Carol, this contract has NOT been cancelled.
You need to have your client seek proper legal advice in respect of this matter. The Vendor cannot cancel the Contract. The Purchaser has not and will not agree to the same.”[18]
[18] Exhibit 1, document S7.
15On 10 May 2021 Mr Ma sent an email to Ms Sant, copying Mr Nguyen and Mr H Ma, stating:
“Please go ahead and lodge a caveat against the property known as 23/23 King Edward Ave, Albion on my behalf urgently.”[19]
[19] Exhibit 1, document S7.
16Devonshire Conveyancing forwarded Mr Ma’s email above to Mr Tasevski, stating:
“We have sent email to the Purchaser’s conveyancer noting that you already advised agent of contract cancellation. However, they have sent this email noting this contract has NOT been cancelled and they will lodge a caveat.
Please advise your position.”[20]
[20] Exhibit 1, document S7.
17On 28 May 2021, Ms Sant emailed Devonshire stating:
“We confirm that settlement is only a month away now.
Our client requires settlement of this matter or they will be taking proceedings against the Vendor.
We highly advise your client to be co-operative as we will seek to enforce the contract signed by the parties.
We await your duties and pexa invitations as soon as possible.”[21]
[21] CB 100.
18On 3 June 2021 at 12.33pm, Ms Sant emailed Devonshire stating: “We note that we have still not received DOL & PEXA invitations from your office for this matter. Kindly advise an urgent response.”[22]
[22] CB 106.
19On 3 June 2021 at 12.36pm, Ms Sant emailed Devonshire stating:
“Please advise your client that if settlement is not completed by the due date we will be claiming additional legal costs and loss of rental. Our client has a tenant ready to move in and if they cannot access the property on the due date of settlement will be claiming all losses from the Vendor.
Please remind your client that we have lodged a purchasers caveat also.
We await your response.”[23]
[23] CB 105-106.
20On 4 June 2021 at 12.24pm, Ms Sant emailed Devonshire asking: “Any news from your client?”.[24]
[24] CB 104-105.
21On 4 June 2021 at 2.59pm, Ms Sant emailed Riverside stating: “We have received an email from our Client confirmed (sic) that he has cancelled the Contract of Sale for 23/23 King Edward Avenue…”[25]
[25] CB 103-104.
22On 4 June 2021 at 3.02pm, Ms Sant emailed Devonshire stating:
“The Vendor CANNOT cancel the Contract. He has not (sic) legal right or authorisation to do that.
Please explain that to him.
We have advised you on 4 occasions on this already. Surely, you have explained hoe (sic) Contract Law works. The Vendor has NO RIGHT to cancel a contract after they have already accepted the offer of the Purchaser.
Please pass this to your client and advise that will we seek damaged (sic) for legal fees and for loss of rental if he is not in a position to settle by the due date.”[26]
[26] CB 103.
23On 5 June 2021, Ms Sant created a PEXA workspace for the purpose of conducting settlement electronically.[27] Mr Ma’s financier accepted an invitation to the workspace, but Devonshire did not.[28] Mr Ma’s financier was ready to settle on 1 July 2021.[29]
[27] CB 109-114.
[28] CB 107.
[29] CB 112.
24On 1 July 2021, settlement did not occur.
25Lily Ong & Associates sent a letter dated 12 July 2021 to Mr Tasevski’s home address, which stated:
“…
2.On 9 February 2021 you entered into a contract of sale with our client for the property situated at Unit 23/23 King Edward Avenue Albion VIC 3020 (“Contract of sale"). The Contract of Sale was due for settlement on 1 July 2021.
3.The contract was unconditional of any terms.
4.On 10 May 2021 you advised our client that you had 'cancelled’ the contract.
5.Our client had communicated to you that it was at all times ready and willing to conducted settlement of the Contract of sale.
6.You failed to settle the Contract of Sale on 1 July 2021.
7.You are not entitled under the Contract of Sale to terminate the contract and at no time have you provided a reason to our client for terminating the contract.
8.We require specific performance of the Contract of Sale and for settlement to be conducted by no later than 21 July 2021.
9.Please confirm by 16 July 2021 that you will perform your obligations under the Contract of Sale and ensure settlement will occur by no later than 21 July 2021.
10.Failure to respond by 16 July 2021 and confirm your intention to settle, may result in further litigation without notice to you. We will seek instructions on issuing proceedings and this letter will be produced on the question of costs, of which we will be seeking indemnity costs.”
(the first call to settle)[30]
[30] CB 119-120.
26On 16 July 2021, Mr Tasevski emailed Lily Ong & Associates, responding to the first call to settle:
“In response to your letter from 12th July 2021, I would like to clarify your misunderstanding of the situation and shed light on some important facts surrounding the events of the last few months.
·Your client has been well informed throughout the whole process through the Real Estate agent, as was evident when your client put a caveat on my property
·Section 3.3. of the Terms of Authority gives me the right of termination of the contract at any time
·On the 06/03/21, | officially executed my rights to terminate the contract, on the basis that "my real estate agent" was manipulating me and mis-representing my interests in the sales process, and illegally forced me to commit to the signing of the sale contract with your client
·Subsequently, the Contract of Sale was based on criminal manipulations by the real estate agent, and as such invalid and therefore terminated
·The Contract of Sale is an illegal document and as such cannot be executed, therefore, I have reported this to the relevant Authority on 15/06/2021
I hope the above has provided you with more clarity on the matter.”[31]
[31] CB 121.
27On 3 August 2021, Lily Ong & Associates sent a letter dated 3 August 2021 to Mr Tasevski’s email address, which stated:
“… As indicated to you in our earlier correspondence, our view is that you have signed and exchanged a valid contract of sale with our clients who wish to purchase the property without any further delay.
You have not sent us a copy of your report to the Authority and or any evidence of why you say the contract signed by you is not valid.
In any event it may be that your action and claim is against your agent and will not assist you in an action by our client for specific performance.
Our client continues to be willing able and ready to settle this matter.
Unless we received a satisfactory response from you by 5pm on 6 August 2021 (this Friday), we will seek instructions to immediately commence court proceedings for orders for specific performance of the contract.
If our client is forced to take these steps we put you on notice that all costs of the proceedings will be claimed against you as part of our client’s damages claim. We trust that this is not necessary and once the property is sold to our client you are free to take your action against the agent given that your claim will then be quantified. Again we urge you to take legal advice and have your solicitor contact us prior to any legal proceedings commencing against you.”
(the second call to settle)[32]
[32] CB 122.
28Mr Tasevski did not respond to the second call to settle.
Procedural history
29On 18 January 2022, Mr Ma commenced proceedings in this Court by way of Writ endorsed with a Statement of Claim.
30On 23 February 2022, Mr Tasevski, while self-represented, filed a Defence (Original Defence). The Original Defence contained unparticularised allegations that Mr Tasevski was coerced and forced to sign the contract based on “unlawful manipulations” between MFS and Mr Ma “for their personal gain at my expense”.
31On 29 July 2022, Mr Ma filed a summons returnable on 22 August 2022 seeking orders that parts of Mr Tasevski’s Defence be struck out.
32On 22 August 2022, his Honour Judge Trapnell struck out a number of paragraphs of Mr Tasevski’s defence including the paragraph alleging coercion and “unlawful manipulations” and ordered that Mr Tasevski file an amended Defence by 8 September 2022.
33In September 2022, Mr Tasevski engaged Angelowitsch & Associates to act on his behalf.
34On 8 September 2022, Angelowitsch & Associates filed a Notice of Solicitor Acting and filed and served an Amended Defence dated 7 September 2022 (Amended Defence). The Amended Defence made no allegations of coercion, collusion or manipulation against Mr Ma. At paragraph 5, Mr Tasevski pleaded:
“Save to say that on 6 March 2021, the defendant sought to discontinue the contract, the Defendant otherwise denies the allegations contained in paragraph 5 of the Plaintiff’s Statement of Claim.”[33]
Save for the denial at paragraph 7,[34] the defence otherwise either “admitted” or “not admitting” the balance of the claim.
[33] Paragraph 5 of the Statement of Claim states: “In breach of the contract, on 6 March 2021, the defendant
purported to cancel the contract. Particulars: The purported cancellation of the contract was in writing by email from the defendant. A copy of the email is in the possession of the plaintiff and may be inspected at the office of the solicitors for the plaintiff at a mutually convenient time.”
[34] At paragraph 7, Mr Tasevski pleaded: “The defendant denies the allegations contained in paragraph 7
of the Plaintiff’s Statement of Claim. Paragraph 7 of the Statement of Claim states: “In ongoing breach of the contract, the defendant has refused to transfer the property to the plaintiff in accordance with the contract of sale. Particulars: This refusal is to be inferred from: (a) the purported cancellation of the contract on 6 March 2021; (b) the failure of the defendant to respond to the plaintiff’s calls to settle on 12 July 2021 and 3 August 2021.”
35On 12 December 2022, Lily Ong & Associates emailed Mr Angelowitsch advising him that Mr Ma had instructed them to make an application for summary judgment and asking him to confirm that he had instructions from Mr Tasevski to accept service of the same.
36On the same day, Mr Angelowitsch responded stating that the firm was seeking leave of the Court to file a Notice of Ceasing to Act as Mr Tasevski had withdrawn his instructions and he could not accept service on Mr Tasevski’s behalf.
37On 19 December 2022, Angelowitsch & Associates filed a cease to act application.
38On 20 December 2022, Mr Ma filed and served a summons seeking summary judgment against Mr Tasevski, which was returnable on 15 February 2023.
39On 23 December 2022, Judicial Register Muller made orders granting Angelowitsch & Associates leave to file and serve a Notice of Ceasing to Act, confirming the trial date and listing the matter for a pre-trial directions hearing on 24 January 2023.
40At the pre-trial directions hearing on 24 January 2023, Judicial Registrar Muller ordered Mr Ma’s summons seeking summary judgment listed on 15 February 2023 be vacated and listed for mention at the conclusion of the trial.
41Judicial Registrar Muller set out what had occurred at the directions hearing in the “Other Matters” section of the orders, including that:
“B.No particulars are provided to paragraph 5 of the amended defence. When pressed by the Court, the defendant told the Court that he puts his defence on two bases:
I.First, he claims that he had the right to end the contract between himself and the plaintiff because, he says, the contract between him and his real estate agent gives him the right to so do.
II.Second, he claims that he has the right to have the contract set aside because his real estate agent advised him that the plaintiff may file a caveat if the defendant tried to terminate the contract of sale between the plaintiff and defendant, and the plaintiff in fact did lodge a caveat when the defendant purported to terminate the contract of sale. The defendant does not rely on any conversation or document between the plaintiff and real estate agent in support of that basis of defence.
C.The defendant also told the Court that he would give evidence and that he does not propose to call any other witness to give evidence in support of his defence (as articulated above).”
(the defined issues)
42Judicial Registrar Muller also recorded in the “Other Matters” section that:
“D.The plaintiff informed the Court that they are content for the trial to proceed with the defence to be put on the above bases.
E.The matters set out in paragraphs B and C above constitute a defining of the issues pursuant to s48(2)(e) of the Civil Procedure Act 2010. The defendant may not depart from these issues without the leave of the Court.
F.If the defendant wishes to advance a case differently to what is set out in paragraphs B and C and above, then he must give written notice to the plaintiff and the Court of his intention by Wednesday 1 February 2023 at 4.00pm.”
Claims
43In the Prayer for Relief in his Statement of Claim, Mr Ma sought:
“A.Such orders as are necessary to effect the specific performance of the contract of sale.
B.In the alternative to Paragraph A, damages in lieu of specific performance.
C. Damages.
D. Interest.
E. Costs.”
44By email dated 31 January 2023, Mr Sdraulig confirmed that Mr Ma only sought to pursue claims A, D and E at trial:
“… In the Chronology and Summary, the plaintiff alludes to his intention to abandon the claim for damages in addition to specific performance (referred to in paragraph 9 of the Statement of Claim). Out of completeness, the Chronology and Summary also refers to the plaintiff’s intention to abandon the alternative claim of damages in lieu of specific performance referred to in paragraph B of the Prayer for Relief.”
45At trial, Mr Mihaly sought and was granted leave to remove paragraphs B and C of the Prayer for Relief and amend the Statement of Claim to reflect that Mr Tasevski was and is the registered proprietor of the Property as executor of Bozo Tasevski’s estate.[35]
[35] See Exhibits C (Death Certificate), D (Probate Application) and E (Will of Bozo Tasevski). Bozo Tasevski
is Mr Tasevski’s brother who passed away on 10 July 2019.
46In his written submissions filed 22 August 2022, Mr Taseveski sought the following orders:
“PROPOSED ORDERS;
1. Dismiss the case
2. Remove the Caveat
3. Damages, as the Court sees appropriate”
Evidence at trial
47Mr Ma gave evidence and called Ms Sant of Riverside and his father, Mr H Ma as witnesses at trial.
48Mr Tasevski gave evidence and called his daughter, Ms Aleksandra as a witness at trial.
Issue for determination
49By his defence, Mr Tasevski put Mr Ma to proof on two issues:
(a) whether Mr Ma paid the deposit required under the Contract (Deposit Non-Admission);[36] and
(b) whether Mr Ma was ready, willing and able to settle the Contract at all material times (Readiness Non-Admission).[37]
[36] Paragraph 4 of the Amended Defence.
[37] Paragraph 8 of the Amended Defence.
50The issues raised by Mr Tasevski’s two positive defences, consistent with the defined issues are:
(a) whether he had the right to end the Contract because the Agency Authority gave him the right to so do (Termination Defence); and
(b) whether he has the right to have the Contract set aside because Mr Nguyen advised him that Mr Ma may file a caveat if Mr Tasevski tried to terminate the Contract, and Mr Ma in fact did lodge a caveat when Mr Tasevski purposed to terminate the Contract (Collusion Defence).
Evidentiary ruling at trial
51During the cross-examination of Mr Ma, Mr Tasevski drew Mr Ma’s attention to the settlement date in a copy of the Particulars of Sale included in Mr Tasevski’s bundle of documents,[38] which records the settlement date as “01/07/2021”. Mr Tasevski also referred to the copy of the Particulars of Sale included in the Court Book, which records the settlement date as “01/07/2021 or earlier” (emphasis added).
[38] Exhibit 1, document S9.
52Mr Taseveski put to Mr Ma:
“That document[39] is the original contract of sale which the two of us supposed to sign at the time. So in the original, which I have, there's no 'or earlier'. So someone did add that, manipulated that official document.”[40]
[39] The one included in Mr Tasevski’s bundle of documents, Exhibit 1, document S9.
[40] T 72.11-15.
53Mr Mihaly objected to Mr Tasevski’s line of questioning as it was not raised on the pleaded case and went beyond the defined issues.[41] He contended that the authenticity of the document was not an issue in the trial.[42] The sale price, the deposit and date of settlement were admitted in Mr Tasevski’s Defence which was drawn by a solicitor.[43] It was not clear how the version in Mr Tasevski’s bundle could impact on the two defences he relied on, and there was no defence raised suggesting that the Contract was somehow unenforceable because of an alteration or the addition of the words “or earlier”.[44]
[41] T 72.18-20.
[42] T 72.20-22.
[43] T 81.7-12.
[44] T 72.26-73.1.
54If the line of questioning were to be permitted, it would require an amendment of the Defence for which there was no basis. “Manipulation of contract” (if one assumes that to be the case) is not a doctrine in and of itself.[45] In any event, addition of the words “or earlier” would not vitiate the Contract. Even if the words were added to Mr Ma’s copy of the Contract without agreement, that would just mean that the “or earlier” was not a term of the Contract because it was not agreed. It would “all need to somehow be tied to something that happened before the contract was even executed” in order to vitiate the Contract.[46] Every contract is capable of being settled earlier by agreement (as a variation).[47]
[45] T 78.1-2.
[46] T 78.12-17.
[47] T 77.12-15, 78.14-17.
55Clear evidence about which version is in fact the true original would need to be produced,[48] likely from someone from MFS and Ms Sant as the conveyancer.[49] This would require an adjournment. The Court would need to be satisfied that the “defence [could] be put in a proper form even before getting to considerations of Aon Risk Services and the late amendment of the defence and what it does, etc”.[50]
[48] T 78.5-7.
[49] T 78.10-12.
[50] T 79.20-25.
56Mr Tasevski said the question was relevant to prove “possible manipulation which is possibly the plaintiff to be involved in”[51] and an “official manipulation to the document presented to this court” should not be disregarded.[52] “What I see is ah whether we have some shifty business there behind. Some manipulation which – where the plaintiff is included or not.”[53] He noticed it “Just lately. These days… we have the same copy of this falsified copy in the summons they gave me in when, 17 January when they were trying to just bypass this trial.”[54]
[51] T 74.9-10.
[52] T 74.10-11.
[53] T 74.13-16.
[54] T 75.25-76.4.
57I upheld the objection to the question and in response to Mr Tasevski’s question “So what do we do now” informed him that he could proceed, or make an application to amend his defence to support an allegation of “manipulation of the document”. Mr Tasevski said “I don't want to. – I do apologise… Ah any way can decide they want this to finish today. I can’t take any more grief. I’m too sick of that. Whatever your decision is go ahead. Just finish it.”[55]
[55] T 82.28.
58In my view, the allegation of “manipulation of the document” as put to Mr H Ma by Mr Tasevski, was objectionable. The question presumed the copy of the Contract included in Mr Tasevski’s bundle was a copy of the “original”, the notation “or earlier” was added to the copy of the Contract in the Court Book, which was discovered by Mr Ma in July 2022 and the appearance of the words “or earlier” in that copy were “a manipulation”.[56] On the pleadings and in light of the defined issues, there was no basis for those presumptions. The authenticity of the Particulars of Sale in the Court Book was not in issue. A properly pleaded allegation and particulars and evidence would be required to understand the provenance of the copy included in Mr Tasevski’s bundle and to lay a proper foundation for the presumptions included in the question. Mr Tasevski declined to seek leave to amend and proceeded with the trial.
[56] T 79.2-6.
Deposit Non-Admission
Defendant’s submissions
59Mr Tasevski put to Mr Ma that Mr Ma paid the deposit to MFS, but submitted that Mr Ma should have paid the deposit to him personally as there was a “private contract of sale” between them.[57]
[57] T 191.6-7.
Plaintiff’s submissions
60Mr Mihaly submitted that the payment of the deposit to MFS, was evidenced by:
(a) Mr Ma’s evidence;[58]
(b) the receipt from Bendigo and Adelaide Bank dated 11 February 2021 recording an EFT withdrawal of $26,500;[59]
(c) the Trust Account Receipt dated 11 February 2021 which records MFS receiving $26,500 from Mr Ma via bank transfer for “23-23 King Edward Ave”;[60] and
(d) Mr Ma’s bank statement recording an EFT credit transfer of $26,500 with the description “23/23 King Edward” on 11 February 2021.[61]
[58] T 49.15-60.10 (Kevin Ma XN).
[59] CB 94.
[60] CB 95.
[61] CB 33.
61Payment to MFS, rather than to Mr Tasevski personally, was required under general condition 11.1 of the Contract which provides:
“The purchaser must pay the deposit:
(a) to the vendor’s licenced estate agent; or
(b)if there is no estate agent, to the vendor’s legal practitioner or conveyancer; or
(c)if the vendor directs, into a special purpose account in an authorised deposit-taking institute in Victoria specified by the vendor in the joint names of the purchaser and the vendor.”
62As MFS (a licenced estate agent) was engaged by Mr Tasevski at the time the Contract was executed, Mr Ma was required under the Contract to pay the deposit to MFS. Mr Tasevski did not direct Mr Ma to pay the deposit into a special purpose account in an authorised deposit-taking institute.
Legal principles
63In Lo & Anor v Russell [2016] VSCA 323 (Lo), Warren CJ, Tate and McLeish JJA observed at [54]:
“It is commonplace, where the vendor has an estate agent, that the purchaser is likely, up until and including the point of signing the contract, to have dealt principally if not exclusively with that estate agent rather than with the vendor or the vendor’s legal practitioner or conveyancer. Ordinarily, where an estate agent has been appointed, those other parties have no involvement with prospective purchasers prior to sale. It is in the nature of an estate agent’s role that he or she deals with prospective purchasers, and a legal practitioner or conveyancer is generally not required until after the contract is signed. Moreover, the estate agent accepts the purchaser’s deposit in accordance with both statute and the present contract. The estate agent with whom a purchaser will have been so dealing is prominently identified as such in the contract. This is an important aspect of the context in which the contract of sale operates.” (emphasis added)
Conclusion and analysis
64I am satisfied that Mr Ma paid the deposit required under the Contract in accordance with both statute and the Contract.
65Mr Tasevski’s submission that Mr Ma should have paid the deposit to him personally is misconceived. The Contract expressly required Mr Ma to pay the deposit to MFS. I am satisfied on the evidence set out above that not only was the deposit paid but that it was received by MFS, Mr Tasevski’s agent..
Termination Defence
Defendant’s submissions
66Mr Tasevski submitted that he “cancelled” or terminated the Contract by the 6 March 2021 email, which stated:
“… As the agent is in breach of the authority contract, and in breach of the law by advertising a price that is less than the estimated selling price, I hereby:
• Cancel the authority for sale
• Cancel the contract of sale …”[62]
[62] CB 96.
67In Mr Tasevski’s email of 16 July 2021 to Lily Ong, he asserted that “Section 3.3 of the Terms of Authority gives me the right of termination of the [C]ontract at any time”.[63] At this time, he did not articulate what clause 3.3 said.
[63] CB 121.
68At trial, Mr Tasevski tendered the (incomplete) Terms of the Agency Authority between himself and MFS,[64] clause 3.3 of which states:
“'Either party may terminate this Authority during the ongoing authority period at any time on the giving of not less than 14 days written notice. Such termination will be without prejudice to either party's existing rights, duties or obligation.”
[64] Exhibit 1, document S9.
69In opening, in response to my request that Mr Tasevski articulate how he considered he was entitled to end the Contract of Sale, he said:
“Well, because that is given to me by the law. The contract with my agent is made by the contract law. He didn’t make it himself. It comes from the law… That contract for sale comes from that contract with the agent. It’s not a separate document. It’s not independent. I didn’t sign the contract direct with the buyer. That comes from the agent.”[65]
[65] T 26.7-11; T 27.24-27.
70In evidence, Mr Tasevski articulated his entitlement to cancel the Agency Authority and Contract as follows:
(a) He and Mr Nguyen agreed that the reasonable value of the Property was $320,000-$350,000 in the signed Agency Authority;
(b) Mr Nguyen insisted that Mr Tasevski sign the Contract for $265,000 because:
(i)the market was unfavourable; and
(ii)they could not obtain an offer at the agreed upon price;
(c) Mr Nguyen created a false sense of urgency that if he did not sign the Contract, there would be no hope for a further sale;
(d) A few days after signing the Contract, Mr Tasevski saw that Mr Nguyen had advertised the property for $260,000-$275,000, well below the agreed selling range without prior agreement or discussion with Mr Tasevski.[66]By advertising a price that was less than the estimated selling price, Mr Nguyen was in breach of the Agency Authority and of the Contract.
(e) On 6 March 2021, he terminated the Agency Authority and Contract, advising Mr Nguyen and Devonshire Conveyancing.[67]
[66] Clause 4.1.1 of the Authority states that “The Agent will market the property as instructed by the Vendor
in accordance with this Exclusive Selling Authority.” Clause 4.1.2 of the Authority states that “The Agent is authorised to advertise the Property for sale, in accordance with the Vendor instructions, at the Vendor’s Sale Price (Item 4) or such other price as the Vendor may from time to time instruct in writing.” Mr Tasevski tendered a “snapshot” and gave evidence it was from the advertising on the internet showing that the agent was advertising the property for $260,000-$275,000 Exhibit 1
[67] Exhibit 1, document S4.
71In final address, Mr Tasevski contended that as the Contract was signed “through the agency”,[68] it is not a “separate private contract between the two of us [Mr Tasevski and Mr Ma]. It comes from the ah-ah agency and it ends with the agency.”[69] He believed that the Authority and the Contract of Sale were made out of the same law.
“That is the connection between the agent and the contract of sale, so that contract of sale cannot be regard as separate document as a private contract of sale between Ma and me…he [Mr Nguyen] did receive the deposit…”[70]
[68] T 201.16.
[69] T 195.27-29.
[70] T 191.28-31.
72Mr Tasevski said: “If I met him [Mr Ma] on the Victoria market and we did the contract no question asked. But we went thought the agency, we’re coming back to the agency…”[71]
[71] T 201.14-16.
Plaintiff’s submissions
73Mr Mihaly submitted that Mr Tasevski’s Termination Defence must fail for several reasons.
74Firstly, the Contract does not fit within the definition of “Authority” in the Agency Authority. Clause 1.1.(3) defines “Authority” as “this Exclusive Selling Agency Authority consisting of the Item Schedule, Term of Authority and any additional schedules that may be attached”. Therefore, clause 3.3 is not actually a power to terminate the Contract between Mr Ma and Mr Tasevski, it is just a power to terminate the Agency Authority of MFS.
75Moreover, the final sentence of clause 3.3 — “Such termination will be without prejudice to either party's existing rights, duties or obligation” — means even if there was (hypothetically) some sort of power to terminate the Contract, such termination would be without prejudice to the existing rights of Mr Ma under the Contract.
76Secondly, the Agency Authority is a contract between Mr Tasevski and MFS that Mr Ma is not a party to. The Agency Authority and the Contract are not interdependent contracts. The fact that MFS was appointed as Mr Tasevski’s agent before the parties entered into the Contract does not make them so.
77The doctrine of privity applies meaning, except in rare circumstances (none of which apply here), Mr Ma who is not a party to the Agency Authority is not bound by it.[72] This doctrine is so clear that it has been described as “trite”.[73]
[72] Trident General Insurance Co Ltd v McNeice Bros Pty Ltd (1988) 165 CLR 107, 113-115, applied
repeatedly including recently in Humphris v ConnectEast Nominee Co Pty Ltd [2019] VSCA 3.
[73] Argus Administration Pty Ltd v Caldwell [2018] QSC 281, [11].
Conclusion and analysis
78Mr Tasevski’s Termination Defence fails. In my view, Mr Tasevski did not have the right to end the Contract “because the Agency Authority gave him the right to do so.” The Agency Authority has no impact on the operation of the Contract. They are separate and distinct contracts. The fact the Contract was negotiated by MFS as Mr Tasevski’s agent and not directly by Mr Tasevski himself, does not connect the Agency Authority and the Contract in the way contended for by Mr Tasevski. It does not mean that an entitlement to terminate the Agency Authority entitles Mr Tasevski to terminate the Contract. Specifically, Clause 3.3 of the Agency Authority, the clause relied upon by Mr Tasevski, is confined to circumstances in which the “Authority” may be terminated. The definition of “Authority” makes it plain that it does not include or in any way refer to or impact the Contract.
79Further, the Agency Authority was a contract between Mr Tasevski and his own agent, MFS. Mr Ma was not a party to the Agency Authority meaning the doctrine of privity would apply and Mr Ma would not be bound by any purported termination under clause 3.3 of the Agency Authority.
Collusion Defence
Defendant’s submissions
80To understand Mr Tasevski’s position in relation to the collusion defence fully, I have had regard to issues raised by him in his opening, cross-examination of Ms Sant, Mr Ma and Mr H Ma, his evidence and his final submissions even if strictly beyond the scope of the defined issues.
81Mr Tasevski’s position was that the Contract should not be enforced[74] because the following two events indicate communication between Mr Nguyen and Mr Ma, from which collusion or an inappropriate relationship can be inferred:
(a) after the Contract was signed, Mr Nguyen told Mr Tasevski that if he terminated the contract Mr Ma would put a caveat on the property (the Conversation).[75] In opening, Mr Tasevski said:
“He [Mr Nguyen] didn’t have any permission. [to advertise the property for $260,000 to 275,000]. He didn’t let me know anything about that. I did find it after the signing of the contract for sale, so that is the reason why I did terminate it. I did ask him in the first place to do that himself instead of me, and he didn’t want to do that for whatever reason, and then I did tell him, if you don’t do that, I’ll do it. Then he said, oh, if you do that, the buyer will put a caveat on the property…”[76] (emphasis added); and
[74] Mr Ma’s case should be dismissed and the caveat removed.
[75] T 133.10-17 (Tasevski XXN).
[76] T 27.2-9.
(b) a caveat was placed on the Property before the agreed settlement date (the caveat).
82Mr Tasevski gave evidence that Mr Ma “was informed of the incoming termination”[77] and submitted that:
(a) “they did know that, uh, the contract is terminated, so to protect that they lodged the caveat so they can keep me under the leash… It is nothing else than that…”;[78] and
(b) “It was established with evidence that the plaintiff was aware of the impending cancellation of the contract as supported by the caveat placed on my property before the agreed settlement date. It was established with evidence that the plaintiff instructed the conveyancer to act on their behalf to do this…”[79]
[77] T 118.6-7.
[78] T 193.15-16.
[79] T 197.28-31; T 198.1-2. Mr Tasevski gave evidence that “the plaintiff was informed of the incoming
termination”: T 118.6-7.
83Mr Tasevski also raised the following matters:
(a) In cross examination of Mr Ma, Mr Tasevski observed in relation to the 24 February 2021 email from Mr Nguyen to Mr H Ma, that the email was addressed to Mr Ma’s father instead of to Mr Ma and put to Mr Ma that the sale was meant to be for him, not his father.
(b) In final address, Mr Tasevski submitted I should not accept Ms Sant’s evidence that she was preparing the ground in April for a July settlement, because she sent an email in June for that purpose. He contended I should find that is “strange”. Mr Tasevski:
(i)challenged Ms Sant’s evidence that her request that the PEXA workspace be set up in April 21 for a settlement on 1 July 21 was simply part of the process of getting ready for settlement.[80] He put:
“And suddenly you are coming up, so far ahead after lodging the caveat, you are calling for settlement… Interesting from April, you are preparing for July…”[81]
(ii)put to Ms Sant that it was “very unusual” for her to have lodged the caveat in April 2021 on instructions from Mr H Ma, only to later receive written instructions from Mr Ma in May 2021 to lodge a caveat:
“To me is very unusual to have a – after that one ah confirmation of getting an order in writing for something which is already done. Why would they need it if they didn’t have something else in mind?”[82]
(iii)contended I should reject Mr Ma’s evidence that the 10 May 2021 email was “bookkeeping”, when he was ordering Ms Sant to put the caveat on, and the caveat was already on.[83] “It is a laughing matter.”[84]
[80] T 46.8-17.
[81] T 45-46 (Sant XXN).
[82] T 44.26-29.
[83] T 194.13-16.
[84] T 194.30.
Plaintiff’s submissions
84Mr Mihaly submitted that the Collusion Defence has not been articulated by Mr Tasevski in accordance with any specific legal principle (perhaps understandably, given he is self-represented and has no legal qualifications). Collusion is a “layman’s term” which could refer to a number of legal doctrines including undue influence, unconscionable conduct and duress.[85] As such, Mr Mihaly had to keep his submissions on behalf of Mr Ma “relatively general”.[86]
[85] T 171.19-22.
[86] T 174.17-20.
85Mr Mihaly submitted that “irrespective of whether the Conversation and the Caveat are made out, they simply could never amount to any possible defence under any of the doctrines that exist in this area of law”.[87]
[87] T 172.4-7. Mr Mihaly opened that “As a matter of fact, those two events did occur, most likely”: T 22.13-
14.
86Taking the Collusion Defence at its highest, it must fail. To have succeeded, Mr Tasevski would have had to have shown that:
(a) first, Mr Tasevski was the victim of an actionable wrong by MFS;
(i)There is inadequate evidence of any wrong by MFS causing Mr Tasevski to enter into the Contract.[88] There would need to be a nexus or connection between MFS’s wrong and the formation of the Contract.[89]
[88] T 174.26-29.
[89] T 175.11-18.
(ii)Mr Tasevski primarily relied upon a screenshot, said to show that MFS advertised the Property with a sale price of “$260,000 to $275,000” which is lower than what he instructed.[90]
[90] The screenshot does not indicate the name of the property it relates to or its time or date,
however Mr Mihaly did not challenge Mr Tasevski’s evidence that it related to the Property and was seen by him in the days after signing the Contract.
(iii)There is no evidence that the advertisement led to the Contract.[91] Mr Ma may have come to the Property in a different way where he was not told the advertised price and simply offered $265,000 because that is what he thought it was worth.[92]
[91] T 175.1-2.
[92] T 175.3-10.
(b) secondly, Mr Ma was unlawfully or illegally party to MFS’ wrong;
(i)The Conversation is not evidence of an improper relationship between Mr Ma and Mr Nguyen.[93] It was a conversation between Mr Tasevski and Mr Nguyen and that is all.[94] As was noted in paragraph B(II) of Judicial Registrar Muller’s orders dated 24 January 2023, Mr Tasevski did not rely on any conversation or document between Mr Ma and MFS in support of this defence. There is no evidence of the second step, where Mr Nguyen actually went to Mr Ma and said, “He's about to terminate. You should put a caveat.”[95] A purchaser’s caveat is “hardly unusual”, in fact it is “very common”.[96]
[93] T 175.27-176.5.
[94] T 176.2-3.
[95] T 176.16-20.
[96] T 177.15-16.
(ii)There was evidence given at trial which explains the reason for the caveat.[97] Ms Sant received instructions from Mr H Ma to lodge the purchaser’s caveat.[98] At this time, Mr H Ma was aware that Mr Tasevski was unhappy with the terms of the Contract due to the February 2021 telephone calls and the 24 February 2021 email. However, Mr H Ma was not aware of Mr Tasevski’s “attempted to termination” by the email of 6 March 2021[99] when he instructed Ms Sant to the lodge the caveat,[100] therefore the caveat cannot be a result of the Conversation.[101]
[97] T 178.3-4.
[98] T 35.19-27 (Sant XN).
[99] Mr Tasevski’s email was sent to Devonshire, copying Mr Nguyen. It was not sent to Ms Sant,
Mr Ma or Mr H Ma.
[100] T 91.3-6.
[101] T 178.13-18.
(c) thirdly, the alleged wrong occurred before formation of the Contract; and
(i)To succeed on the Collusion Defence, Mr Tasevski would need to “show an improper relationship before the formation of the [C]ontract”.[102] An improper relationship formed after formation of the Contract would never invalidate the Contract, because the parties’ rights are enshrined upon execution.[103]
(ii)Even if the caveat was lodged consequentially on the Conversation, this would still not be enough to support the Collusion Defence.[104] At its highest, it should result in the conclusion that there was a relationship between the vendor’s agent and the purchaser after formation of the Contract.[105]
(iii)The only evidence of a relationship before formation of the Contract is the fact that Mr Ma and Mr Tasevski both agree that they never met,[106] thus execution of the Contract must have been facilitated by a third party.[107] Even if you infer that execution was facilitated by Mr Nguyen,[108] there is no evidence that Mr Nguyen’s relationship with Mr Ma was “anything other than the ordinary relationship of a purchaser dealing with a vendor's agent”.[109] In fact, in a vast majority of real estate sales in Victoria which involve an agent, there are no direct dealings between the vendor and purchaser.
(d) fourthly, the nature of the alleged wrong is such that it gives rise to the invalidation of the Contract as opposed to some other remedy.
(i)Just because a wrong exists does not mean it invalidates an existing contracts.[110] There are numerous instances where a wrong sounds only in damages.[111]
(ii)Mr Tasevski would need to show that the improper conduct gave him a legal right which would have entitled him to rescind or affect the contract, as opposed to an amount of money.[112] He has not done so.
(iii)An improper relationship formed after the Contract was signed (which Mr Ma denies) might entitle Mr Tasevski to compensation, but it would not entitle him to “cancel” the Contract.[113]
[102] T 179.1-3.
[103] T 179.5-8.
[104] T 178.25-29.
[105] T 178.29-31.
[106] T 59.14-20 (Kevin Ma XXN).
[107] T 180.18-21.
[108] Mr Tasevski did not adduce evidence about this.
[109] T 180.21-25.
[110] T 174.8-9.
[111] T 173.11-12. Mr Mihaly gave an example: “An example, for the sake of it, is misleading and deceptive
conduct. If I said to somebody here is a bag with $100,000 in it, sorry with a million dollars in it I'll sell it to you for $100,000 and it only has half a million in it I've clearly lied to them but they've suffered no loss because quite clearly if they knew the truth they would still buy it for $100,000.” (T 173.26-174.5).
[112] T 173.15-21.
[113] T 180.10-13.
87In relation to Mr Tasevski’s criticisms of Ms Sant in respect of the lodgement of the caveat on Mr H Ma’s instructions, Mr Mihaly submitted they are not relevant to the Collusion Defence. If anything, they undermine the Collusion Defence as the types of causes of action that underly the defence would require actual knowledge on Mr Ma’s part. The lodgement of the caveat without instruction would prevent the Caveat being the result of the Conversation.
Conclusion and analysis
88Mr Tasevski’s Collusion Defence fails. Mr Tasevski does not have the right to have the Contract set aside “because Mr Nguyen advised him that Mr Ma may file a caveat if Mr Tasevski tried to terminate the Contract, and Mr Ma in fact did lodge a caveat when Mr Tasevski purported to terminate the Contract.”
89In my view, the circumstances of the lodgement of the Caveat do not support an inference of an inappropriate relationship or collusion between Mr Ma and MFS either before the signing of the Contract or after. The evidence supports a finding that the Caveat was lodged to protect the purchaser’s interest in the ordinary course of conveyancing practice.
90There is no evidence of a connection between Mr Ma and any alleged improper conduct on the part of MFS. It is apparent from the 6 March email that Mr Tasevski considered his agent, Mr Nguyen:
(a) advertised the Property below the price he instructed Mr Nguyen to advertise the Property for without prior agreement or discussion;
(b) forced Mr Tasevski to agree to an offer below the agreed sale range in the Agency Authority; and
(c) breached the Agency Authority and acted improperly in doing so.
(alleged price manipulation)
91MFS was not a party to the proceeding. Mr Tasevski did not sue MFS or Mr Nguyen. Mr Nguyen did not give evidence. This issue was raised at trial and during pre-trial hearings:
“HER HONOUR: … I come back to the observation perhaps that the focus, certainly in terms of Mr Tasevski's concerns, lie with the agent who is not being sued.
MR MIHALY: [The agent] is not being sued and with respect to Mr Tasevski that is a matter that has been pointed out in open court on many occasions.”[114]
[114] T 176.23-29.
92Assuming, for the purpose of Mr Tasevski’s Collusion Defence, that the alleged price manipulation was established, there was no evidence of a nexus between that alleged conduct and Mr Ma’s purchase of the property. As Mr Mihaly submitted, Mr Ma may have come to the Property in a different way where he was not told the advertised price and simply offered $265,000 because that is what he thought it was worth.
93In final address, Mr Tasevski disavowed any allegation that Mr Ma was involved in MFS’ alleged price manipulation. In relation to the selling of the property below the agreed price range, Mr Tasevski said:
“I’m not claiming ah blaming the plaintiff that it is his misconduct… Is definitely misconduct of the agent…
… and ah as he [Mr Mihaly] did raise the question ah was the plaintiff involved in all that ah manipulation beforehand and ah whether he did give some influence in that part ah before we sign the contract. Actually, not before but ah when I raise the question for cancelling.”[115] (emphasis added)
[115] T 196.13-18, 22-27.
94The evidence does not, however, support a finding that the lodgement of the Caveat was the result of the Conversation.[116] There was no evidence that Mr Nguyen instructed Mr Ma to lodge a caveat because Mr Tasevski was planning to terminate the Contract.[117] Mr Ma, Mr H Ma and Ms Sant were not copied into the 6 March 2021 email from Mr Tasevski to Mr Nguyen and his own conveyancer in which he “cancelled” the contract. This supports their denial of knowledge of the 6 March email and that Mr Tasevski had “cancelled” the Contract. The Caveat was not lodged until 21 April 2021, undermining any suggestion of an immediate temporal connection.
[116] Which was between Mr Nguyen and Mr Tasevski, but by inference “that the plaintiff was aware of the impending cancellation of the contract” and that Mr Ma lodged the caveat because of communication from MFS.
[117] It was also not an allegation the subject of the defined issues.
95Rather, Mr H Ma and Ms Sant were aware that Mr Tasevski was unhappy with the terms and potentially “it could arise in, um, further issues down the track”[118] due to the 24 February 2021 email.[119] Lodgement of a purchaser’s caveat is consistent with that general state of awareness.
[118] T 25.23-27.
[119] Exhibit 1, document S2.
96At its highest, the 24 February 2021 email supports an inference that there was some knowledge of Mr H Ma by Mr Nguyen. One might infer, and it seemed to be accepted by Mr Tasevski[120], that MFS facilitated the signing of the Contract, as both Mr Tasevski and Mr Ma gave evidence they had never met. Such contact is consistent with a purchaser dealing with a vendor’s agent in the ordinary course of a purchase. As was observed in Lo:
“It is commonplace, where the vendor has an estate agent, that the purchaser is likely, up until and including the point of signing the contract, to have dealt principally if not exclusively with that estate agent rather than with the vendor or the vendor’s legal practitioner or conveyancer. Ordinarily, where an estate agent has been appointed, those other parties have no involvement with prospective purchasers prior to sale. It is in the nature of an estate agent’s role that he or she deals with prospective purchasers…”[121]
[120] Mr Tasevski put to Mr Ma: “We had the contract through the agency.” T 59.21-22 (Kevin Ma XXN).
[121] Lo at [54].
97In that context, and in light of Mr Ma’s evidence, set out below, of Mr H Ma’s involvement in the purchase on behalf of Mr Ma, I do not consider the fact that Mr Nguyen telephoned Mr H Ma and sent the 24 February 2021 email to Mr H Ma instead of Mr Ma supports an inference of an inappropriate relationship between Mr Nguyen and Mr Ma.
98The fact that Ms Sant took instructions from Mr H Ma to lodge a caveat on 21 April 2021 and not from Mr Ma is not, in my view, “very unusual” as contended for by Mr Tasevski, in circumstances where:
(a) Mr H Ma and Ms Sant had a business relationship over a period of 20 years;[122]
(b) Ms Sant was comfortable to act on Mr H Ma’s verbal instructions;
(c) Mr H Ma predominantly gave Ms Sant instructions in relation to the conveyance;[123] and
(d) Mr Ma was comfortable with his father making decisions because “my father has greater experience in finance and property than I did…”[124]
[122] T 88.1-4 (Hans Ma XN).
[123] T 51.2 (Kevin Ma XN).
[124] T 66.13-22 (Kevin Ma XXN).
99I agree with Mr Tasevski that Ms Sant’s description of her request for written confirmation from Mr Ma in May 2021 as being “housekeeping… just to have something on record”[125] or “written confirmation” does not sit well with the wording of the email which reads as a fresh instruction. I also agree with Mr Tasevski that Mr Ma’s answers to the question why he sent the email phrased as an instruction in circumstances where the caveat had already been lodged, did not sit well together:
(a) On one hand, Mr Ma gave evidence that the email “was purely for bookkeeping purposes as the caveat had already been lodged via verbal confirmation in late April… to confirm that it had been lodged.”[126]
(b) On the other hand, Mr Ma gave evidence that he became aware that the Caveat had been lodged “when this email was sent and then [Ms Sant] responded that a caveat had been lodged in - on the 21st of April already.”[127]
[125] T 45.4-7.
[126] T 64.20-25 (Kevin Ma XXN).
[127] T 64.6-9 (Kevin Ma XXN).
100Despite this tension, which bore the hallmarks of back-solving, it does not in my view, support an inference of an inappropriate relationship between MFS and Mr Ma nor does it provide a basis on which I should find Ms Sant’s evidence to be lacking in credibility or reliability. I consider it is likely reflective of a lack of communication between Mr H Ma and Mr Ma. I accept Mr Ma’s evidence that:
(a) The first time he heard of the term “caveat” was sometime in May when his father assisted him with the email to Ms Sant.[128]
(b) At the time the Caveat was lodged, he had not had any conversation with MFS about the Caveat.[129] There is no evidence to the contrary and his evidence is consistent with the email of 10 May 2021.
[128] T 50.21-24 (Ma XN).
[129] T 51.4-8 (Ma XN).
101Even if the evidence supported an inference that the Caveat was lodged because of the Conversation, that would not provide a basis on which to infer vitiating conduct giving rise to a right to have the Contract set aside. As the parties’ rights were enshrined upon execution of the Contract, any such relationship, even if shown to be “improper”, would not give rise to a right to have the Contract set aside.
102Although not directly bearing on the Collusion Defence as framed, Mr Tasevski challenged Ms Sant’s evidence that her request that the PEXA workspace be set up in April 21 for a settlement on 1 July 21 was simply part of the process of getting ready for settlement.[130] This was because the wording of the email suggested some urgency:
“Hi Team, We are chasing the DOL & PEXA invitations. Please arrange as soon as possible.”[131]
[130] T 46.8-17.
[131] CB 101-102.
103It appears from correspondence that the potential for an earlier settlement was raised.[132] In Ms Sant’s response to Mr Nguyen’s 24 February 2021 email she wrote:
“We therefore confirm that the Contract of Sale cannot cancelled (sic) and remains on foot. Our client has however, as show of good faith, advised that should the loan funds be available for settlement earlier then the 1st July 2021, we will endeavour to settle the matter on an earlier date.”[133]
[132] Exhibit 1, document S2.
[133] Exhibit 1, document S2.
104Mr Ma’s evidence was that he was aware that his father acted on his behalf but those specific instructions were not provided by him.[134] It was not put to Mr H Ma that he sought an early settlement. Even if one accepts that there was some effort to effect settlement on an earlier date, in my view, that is not a basis on which to find some sort of improper relationship between Mr Ma and MFS. Parties are entitled to negotiate and agree an early settlement.
[134] T 70.31-71.25 (Kevin Ma XXN).
105I am not satisfied Mr Tasevski has established the Collusion Defence as defined and having regard to the issues raised by him during the trial.
Readiness Non-Admission
Defendant’s submissions
106Mr Tasevski put Mr Ma to his proof on this issue.
Plaintiff’s submissions
107Mr Mihaly submitted that Mr Ma was ready, willing and able to settle the Contract at the settlement date, since the settlement date, and is presently.
108Mr Ma’s substantial obligation under the Contract, as purchaser of the Property, was to pay the balance of the contract price at settlement.[135] Mr Ma needed to borrow funds to pay the balance. Conditional approval of a loan is sufficient if the Court can be satisfied that the conditions will be met.[136]
[135] Poulos v Svoboda [2005] NSWSC 364, [41].
[136] Zhu v Snell [2014] NSWSC 468, [136].
109The amounts Mr Ma would need to pay at settlement are:
(a) the balance of the contract price — $238,500 (the contract price of $265,000 minus the deposit paid of $26,500);
(b) land transfer duty (formerly known as stamp duty) — $8,227.50;[137] and
(c) ordinarily minor, adjustments and incidentals — amount unknown.
[137] As an established residential property being purchased for use other than as his principal place of
110Overall, Mr Ma required less than $250,000 to settle (Balance).
Settlement date
111Mr Ma was ready, willing and able to settle on 1 July 2021.
112In anticipation of settlement, Mr Ma:
(a) had engaged Riverside to effect the e-settlement;
(b) had received formal approval for a loan of $212,000 with MyLoan Elect,[138] which was ready to settle;[139]
(c) had funds at bank of more than $80,000,[140] which is significantly more than the shortfall between the loan amount and the Balance.
(d) made calls to settle on 16 July 2021 and 3 August 2021.
[138] CB 97.
[139] CB 116-118.
[140] CB 44.
July 2021 to present
113Mr Ma was ready, willing and able to settle between July 2021 and present, however the evidence as to this is understandably less definitive as settlement was never going to take place from March 2021 without court order.
114The Court can infer that because Mr Ma was able to receive approval for the necessary loan in July 2021 and February 2023, he could have received the same approval at any time in between, so long as his financial position was similar or better. On this point:
(a) Mr Ma’s income and asset position only improved between July 2021 and February 2023;
(b) Mr Ma could call on his father to assist if required (both as to servicing the loan and offering security), noting that such assistance has not been required by a lender so far;
(c) to the extent necessary, Mr Ma has the advantage of his father being his mortgage broker; and
(d) Mr Ma and his father had sufficient funds at bank to meet the shortfall between the Balance and the loan amount of $212,000.
Present
115Mr Ma is presently ready, willing and able to settle.
116As at the date of trial, Mr Ma
(a) had funds at bank of approximately $8,900;[141]
(b) had been conditionally approved for a loan of $212,000 from NAB;[142]
(c) his father has sufficient additional funds at bank of approximately $73,000,[143] that he is willing make available for Mr Ma;
(d) can service the proposed loan as:
(i)he receives income of almost $65,000 per annum from his wage,[144] which is noticeably more than his income when he received formal approval for the loan originally intended to effect settlement;[145] and
(ii)he now owns a rental property at Unit 8 / 2 Forrest Street, Albion (Forrest Street),[146] and the rent he receives exceeds the interest repayments secured against that property[147] and other outgoings;[148]
[141] CB 71.
[142] CB 168-169.
[143] Exhibit B.
[144] CB 135-142, 143.
[145] CB 115.
[146] CB 160-163.
[147] CB 123-130.
[148] CB 125, 128, 130.
(e) if required to provide greater proof of serviceability, Mr Ma can obtain a loan by having his father added as a co-borrower;
(f) if required to offer further security, Mr Ma can offer Forrest Street. This property was purchased for $275,000 and is valued in the rates notice at $265,000.[149] It has a loan secured against it of less than $221,000;[150] and
(g) if still required to offer further security, Mr Ma can offer further security from his father, who has an interest in the properties at 1 Sherbourne Street, Essendon[151] and 2 California Boulevard, Point Lonsdale.[152]
[149] CB 133-134
[150] CB 131-132
[151] CB 164-165
[152] CB 166-167
Legal principles
117The general law provides that the readiness, willingness and ability of a claimant purchaser to a contract for the sale of land to complete the settlement is an essential ingredient, whether seeking damages for breach of contract, rescission of the contract on the ground of the other's default, or specific performance.[153]
[153] Hensley v Reschke (1914) 18 CLR 452, 467-468 cited in Killarney Investments Pty Ltd v Macedonian
Community of WA (Inc) [2007] WASCA 180, [116].
118In Sommers v Pearse (NSWCA, 16 December 1993 unreported, BC9302367), Mahoney AP said:
“There is no doubt that a defendant in a proceeding for specific performance may succeed if the plaintiff’s readiness, willingness and ability to perform does not appear.”
119In considering the question of readiness, willingness and ability, Barwick CJ in Mehmet v Benson (1965) 113 CLR 295 observed at 307:
“The question as to whether or not the plaintiff has been and is ready and willing to perform the contract is one of substance not to be resolved in any technical or narrow sense. It is important to bear in mind what is the substantial thing for which the parties contract and what on the part of the plaintiff in a suit for specific performance are his essential obligations. Here the substantial thing for which the defendant bargained was the payment of the price: and, unless time be and remain of the essence, he obtains what he bargained for if by the decree he obtains his price with such ancillary orders as recompense him for the delay in its receipt.”
120In Carydis v Merrag Pty Ltd [2007] NSWSC 1220, Brereton J said at [34]:
“I do not think that proof that a purchaser is ready, willing and able to complete for the purposes of a suit for specific performance necessarily requires that the purchaser be able to prove with certainty at the hearing that he has every cent that he needs to pay the purchase price, the costs of acquisition, and to service any borrowings which are required for that purpose. What is required is that the court be persuaded on balance that the purchaser wishes, intends and in substance has the ability to complete.”
121In Green v Sommerville (1979) 141 CLR 594, Mason J held at 610:
“It is well settled that a plaintiff in a suit for specific performance is not required to show that he has strictly complied with all his obligations under the contract; it is enough that he has performed and is ready and willing to perform the substance of the contract (Fullers' Theatres Ltd. v. Musgrove (8)). In Mehmet v. Benson (9), the purchaser was in default in payment of instalments of purchase price and interest under a terms contract. Yet he succeeded in a suit for specific performance.”
Conclusion and analysis
122I am satisfied that Mr Ma was ready, willing and able to settle the Contract at the settlement date and in the period between the settlement date and the present.[154] I am satisfied that Mr Ma wishes, intends and in substance, has the ability to complete.
[154] On the evidence as set out above.
123On the evidence before me, I am satisfied Mr Ma will be able to meet the conditions of his conditional loan approval from NAB with his (increased) income of $65,000 per annum and the rental income from the Forrest Street property. If serviceability were to be an issue, I accept Mr H Ma’s evidence he would assist as a co-borrower. If necessary, Mr Ma could offer the Forrest Street property and/or one or both of his father’s property interests as security.
Specific performance
124Mr Mihaly submitted that in circumstances where Mr Ma has proved:
(a) the existence of the Contract;
(b) his compliance with the Contract;
(c) Mr Tasevski’s breach of the Contract; and
(d) the failure of Mr Tasevski’s:
(i)Termination Defence; and
(ii)Collusion Defence,
the Contract remains on foot and it liable to be enforced by Mr Ma.
125Mr Ma is entitled to specific performance. Although specific performance is a discretionary remedy, with respect to contracts for the sale of land, it is ordinarily available unless there is a reason to refuse it.[155] Such a reason will not be lightly found.[156]
[155] Mould v Canale [2017] VSC 793, [139], applied in Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC
497, [120].
[156] Mould v Canale [2017] VSC 793, [140].
126Specific performance will be available so long as:
(a) damages is not an adequate remedy for Mr Tasevski’s breach of Contract:
(i)Mr Ma abandoned his claim for damages in lieu of specific performance prior to the commencement of trial. If the Court was not minded to grant specific performance, Mr Ma would get nominal victory only.[157]
(ii)It is well settled that land is unique, for which damages is not an adequate remedy.[158]
[157] T 184.10-14.
[158] Pianta v National Finance and Trustees (1994) 180 CLR 146, [14]; Mould v Canale [2017] VSC 793,
[139], applied in Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497, [120].
(b) Mr Ma is ready, willing and able to perform his obligations under the Contract.
127I accept Mr Mihaly’s submission that damages are not an adequate remedy for the reasons set out above. I have accepted that Mr Ma is ready, willing and able to perform his obligations under the Contract.
128As Mr Tasevski is self-represented, Mr Mihaly noted at trial that hardship can be a reason that specific performance is not ordered.[159] On this point, Mr Mihaly submitted:
(a) Mr Tasevski did not plead hardship as a defence, which would be necessary for the issue to be investigated in the evidence.[160] Mr Ma is entitled to due notice of what the particular hardship would be (if any).[161]
(b) There is no evidence of any hardship before the Court.[162] When Mr Tasevski was being sworn in, the address he gave was not that of the Property in question in this proceeding. Mr Tasevski did not give evidence that it is his place of residence being sold.[163]
(c) As a matter of law, the level of hardship needs to be quite severe in order to prevent an award of specific performance.[164] In IGA Distribution Pty Ltd v King & Taylor Pty Ltd & Anor [2002] VSC 440 at [243], Justice Nettle stated:
“These contentions may be dealt with briefly. The sort of hardship which will preclude the grant of specific performance does not extend to precluding specific performance because the defendant has made an improvident contract. If the defendant has agreed to the terms of the contract sought to be enforced, they should be enforced. There may be cases in which the bargain which is sought to be enforced is so improvident from the defendant’s point of view that equity will refuse specific relief, but the circumstances will be rare and where they occur there is likely to be involved something tantamount to undue influence which renders enforcement unconscionable. The defendant has to show that a decree of specific performance would impose hardship amounting to oppression far outweighing the inconvenience to the plaintiff if he is left to his remedy in damages.” (citations omitted)[165]
[159] T 188.1-2.
[160] T 188.2-6.
[161] T 188.9-10.
[162] T 189.28-29.
[163] T 188.10-14.
[164] T 189.29-31.
[165] This paragraph was quoted and followed in full recently in the decision of Rossi Recycling Pty Ltd v
Buckland Valley Pty Ltd & Anor [2022] VSC 467 at 587
129Although Mr Tasevski did not plead hardship, I have had regard to the matters raised by him during the trial regarding the history of ownership and use of the Property including:
(a) Mr Tasevski’s brother’s cancer diagnosis in 1996;
(b) that Mr Tasevski took care of his brother over the next 20 years and his mother, as they lived in the Property together;
(c) after his mother passed away in 2007, Mr Tasevski’s brother’s health deteriorated and Mr Tasevski took him into his new home, a rental in St Albans where he lived until his death in 2019;
(d) in the meantime, they rented out the flat so that they could manage the mortgage as there was still an outstanding mortgage on the property; and
(e) that “What started as a great opportunity to quickly solve the most important parts of the final leg of my life, after more than two years of torture is ending as a financial disaster, and on top of that, recently, I was diagnosed with cancer.”[166]
[166] T 23.14-18.
130Having regard to the authorities on the question of hardship[167] and the matters raised by Mr Tasevski, (despite the defence not having been pleaded), in my view, there was insufficient evidence led by Mr Tasevski to support a finding that a decree of specific performance would impose “… hardship amounting to oppression far outweighing the inconvenience to the plaintiff if he is left to his remedy in damages”. I find that the injustice caused to Mr Ma if specific performance were denied outweighs any potential hardship to Mr Tasevski. Further, Mr Tasevski did not prove any conduct on the part of Mr Ma “… tantamount to undue influence which renders enforcement unconscionable.” That being so, I am satisfied that Mr Ma is entitled to an order for specific performance of the Contract.
[167] Mould v Canale [2017] VSC 793 at [139] and [140], applied in Bell v Knight 34 Langdon Road Pty Ltd
[2022] VSC 497, [120], Pianta v National Finance and Trustees (1994) 180 CLR 146, [14].
Orders
131Accordingly, I order judgment for the plaintiff.
132Subject to any matters that the parties bring to my attention on the question of costs, I propose to order that the defendant pay the plaintiff’s costs of the proceeding (including reserved costs) on the standard basis, to be taxed in default of agreement.
133I invite the plaintiff to prepare draft orders to give effect to these reasons.
- - -
Certificate
I certify that these 133 paragraphs are a true copy of the judgment of Her Honour Judge Brimer delivered on 12 May 2023.
Dated: 12 May 2023
Taylah Stretton
Associate to Her Honour Judge Brimer
residence ( accessed 31 January 2023). Note that if the Property were purchased by Mr Ma as his principal place of residence, then the duty would be less.
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