JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2019
DATE OF JUDGMENT:	15 October 2019
CASE MAY BE CITED AS:	Mediratta v Clark
MEDIUM NEUTRAL CITATION:	[2019] VSC 685

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SALE OF LAND – Contract for sale of residential land – Whether vendor breached contract – Whether default notice valid – Whether Contract rescinded – Scope of General Condition 22 considered – Whether there should be implied in the contract a term permitting the purchaser or his representative to have access to the land at any time to undertake a valuation – Whether duty to cooperate existed so that the purchaser was entitled to have access to the land to carry out valuation just before or on the settlement day – Whether the vendor engaged in unconscientious conduct entitling the Purchaser to relief against forfeiture of his interest in the land –BP Refinery (Westernport) Pty Ltd v Hastings SC (1977) 180 CLR 266; Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596; Simcevski v Dixon [2017] VSC 197; Ventura v Ventura [2018] VSC 485; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd, (2015) 256 CLR 104; Aussie Invest Corp Pty Ltd v Pulcesia Pty Ltd [2005] 13 VR 168; Legione v Hateley (1983) 152 CLR 406; Stern v McArthur (1988) 165 CLR 489; Tanwar Enterprises Pty Ltd v Cauchi (2004) 217 CLR 315; Romanos v Pentagold Investments Pty Ltd (2003) 217 CLR 367; 428 Lt Bourke St Pty Ltd v Lonsdale St Café Pty Ltd [2009] VSC 133 and U108 Pty Ltd v Sing Fan & Ors [2010] VSC 12 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr V Murano	Vernon da Gama and Associates
For the Defendant	Mr T R Messer	McCracken & McCracken Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Summary of conclusions................................................................................................................... 2

Summary of facts and evidence....................................................................................................... 2

The Contract...................................................................................................................................... 11

The issues.......................................................................................................................................... 14

The Implied Term............................................................................................................................ 15

Submissions................................................................................................................................. 15
Consideration.............................................................................................................................. 16

Did the Vendor breach of GC 22?................................................................................................. 20

Submissions...................................................................................................................................... 21

Consideration.............................................................................................................................. 22

Unconscientious conduct................................................................................................................ 24

Submissions................................................................................................................................. 24
Consideration.............................................................................................................................. 25

Is the Default Notice effective to terminate the contract?......................................................... 29

Conclusion......................................................................................................................................... 31

Caveat removal................................................................................................................................. 31

HIS HONOUR:

Introduction

On 22 April 2017, the plaintiff (Purchaser) entered into a contract of sale of real estate (Contract) with the defendant and Theresa Jean Clark, as vendors, under which the plaintiff agreed to buy and vendors agreed to sell the land at 137 King Street, Wallan, Victoria (Property)[1]. The price payable under the Contract was $700,000.00 payable by way of a deposit of $35,000.00 with the balance due at settlement fixed to be 30 June 2018. That was a Saturday, so in accordance with the General Conditions in the Contract…

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 Mediratta v Clark

Details

AGLC: Mediratta v Clark [2019] VSC 685
Case: [2019] VSC 685
Decision Date: 15 October 2019

CaseChat Overview and Summary

The case of Mediratta v Clark was heard in the Supreme Court of Victoria. The primary dispute involved the sale of residential land, with the purchaser, Mediratta, alleging that the vendor, Clark, breached the contract. Issues included whether a default notice was valid, whether the contract was rescinded, and the interpretation of General Condition 22 of the contract. The purchaser also sought relief against forfeiture due to alleged unconscientious conduct by the vendor.

The court addressed several key legal questions. Firstly, it considered the validity of the default notice issued by the purchaser. The court found that the notice was valid and properly served, as it complied with the contractual terms and the statutory requirements. Secondly, the court examined whether the contract was rescinded due to the vendor's failure to provide access to the land for valuation. The court held that the contract was not rescinded and that the vendor had not acted unconscientiously. The court further analysed whether a term permitting the purchaser to access the land for valuation should be implied in the contract, concluding that such a term was not necessary given the explicit terms of the contract. The court also reviewed the scope of General Condition 22, determining that it did not impose a duty on the vendor to cooperate in allowing the purchaser access to the land for valuation.

The Supreme Court of Victoria ruled in favor of the vendor, Clark, and dismissed the purchaser's claims. The court found that the default notice was valid and that the vendor had not breached the contract by failing to provide access for valuation. The court also held that there was no unconscientious conduct warranting relief against forfeiture. Consequently, the purchaser's claims for rescission of the contract and relief against forfeiture were dismissed. The court did not imply a term in the contract permitting access for valuation, affirming the explicit terms agreed upon by the parties. The final orders of the court were that the purchaser's claims were dismissed, and the contract remained in effect with the vendor entitled to complete the sale as per the agreed terms.

Orders