McHutchison v Asli - [2017] VSC 258

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…

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 McHutchison v Asli

Details

AGLC: McHutchison v Asli [2017] VSC 258
Case: [2017] VSC 258
Decision Date: 15 May 2017

CaseChat Overview and Summary

McHutchison sought a declaration that a notice of rescission provided by Asli was void. Asli had purchased a property and subsequently sought to rescind the sale on the basis of alleged misrepresentations and breaches of statutory conditions. The dispute was heard in the Supreme Court of Victoria. The court had to determine whether the rescission notice was validly served and if Asli had complied with the statutory requirements under the Sale of Land Act 1962.

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