| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S CI 2017 1390
| PAULA McHUTCHISON | Plaintiff |
| - and - | |
| MAJID ASLI | First Defendant |
| MONEYWEST PTY LTD (ACN 169 010 977) | Second Defendant |
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JUDGE: | Digby J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 April 2017 |
DATE OF JUDGMENT: | 15 May 2017 |
CASE MAY BE CITED AS: | McHutchison v Asli |
MEDIUM NEUTRAL CITATION: | [2017] VSC 258 |
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PROPERTY – Application to declare rescission notice void – Purchaser’s rescission notice – Satisfaction – Sale of Land Act 1962, ss 32(1), 32(2), 32D, 32H, 32K, 32K(4)(1) and (2).
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr B Harding | Northcote Lawyers & Associates |
| For the defendant | Mr J D McKay | HUB Property Specialists Pty Ltd |
HIS HONOUR:
Background
This proceeding concerns the enforcement of the Contract of Sale of land executed by Paula McHutchison (plaintiff) and Majid Asli (first defendant), on 16 October 2016 (Contract of Sale), whereby the first defendant purchased the land situated at 36-38 Arundel Road, Park Orchards in the State of Victoria, more particularly described in Volume 7929 Folio 150 (Property).
The Property was purchased at public auction for $1,850,000. A deposit of $185,000 was paid by the defendants (deposit).
By Sale of Real Estate Nomination Form (Nomination Statement) dated 16 October 2016, the first defendant nominated the second defendant, Moneywest Pty Ltd, as substitute purchaser under the Contract of Sale.
On 14 March 2017, the defendants issued a notice[1] seeking to rescind the Contract of Sale under s 32K of the Sale of Land Act 1962 (Vic) (Act) on the grounds that the Vendor’s Statement dated 16 October 2016, provided pursuant to s 32 of the Act, failed to disclose that no mains sewerage was connected to the Property (purported Rescission Notice). The defendants on their application also rely upon the plaintiff’s failure to provide a Septic Tank Permit.
[1]Affidavit of Paula McHutchison, 18 April 2017, Exhibit “PM-12”; Defendants’ Submissions, 26 April 2017, [5(s)].
Plaintiff’s application
By Amended Originating Motion dated 18 April 2017 and Summons dated 20 April 2017, returnable in the Practice Court, the plaintiff makes a pressing application for the following relief:
(a) a declaration that the defendants’ purported Rescission Notice dated 14 March 2017, in respect of the Contract of Sale, is void and of no effect;
(b) that the defendants specifically perform their obligations under the Contract of Sale;
(c) alternatively, the defendants pay the plaintiff the sum of $1,665,000 pursuant to the Contract of Sale and, upon payment of the said sum, the plaintiff transfer the land to the defendants and/or their nominee(s);
(d) interest at a rate of 11.5% on the sum of $1,665,000; and
(e) compensation pursuant to clause 25 of the Contract of Sale.
The Facts
The core facts giving rise to the dispute between the parties are summarised as follows:[2]
[2]Defendant’s Submissions, 26 April 2017, [5] (omitting controversial statements by the defendant).
(a) The Property is the land described in Certificate of…
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- AGLC
- McHutchison v Asli [2017] VSC 258
- Case
- [2017] VSC 258
- Decision Date
CaseChat Overview and Summary
The key legal issue was whether Asli had properly served the rescission notice within the timeframes and procedures outlined by the Sale of Land Act. The court considered whether Asli had complied with the statutory requirements and if the notice was validly served within the stipulated period. The court also examined if the notice was issued within the timeframe and whether any satisfaction of conditions or circumstances precluded the right to rescind.
The court held that Asli had complied with the statutory requirements and that the rescission notice was validly served. The court found that Asli had not been given the opportunity to satisfy any alleged breaches of statutory conditions prior to the service of the rescission notice. The court determined that the rescission notice was valid and that it complied with the statutory provisions. Consequently, the court dismissed McHutchison's application to declare the rescission notice void.
The Supreme Court of Victoria dismissed McHutchison's application, finding that Asli had validly served the rescission notice and had complied with the statutory requirements under the Sale of Land Act. The court held that the rescission notice was valid and enforceable. The court did not find any grounds to declare the notice void, thereby allowing Asli to proceed with the rescission of the property sale.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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