Mirvac (Docklands) Pty Ltd v La Rocca - [2006] VSC 48

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4742 of 2004

MIRVAC (DOCKLANDS) PTY LTD	Plaintiff
v
JOSEPH PETER LA ROCCA	Defendant

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATES OF HEARING:	11, 12, 13, 14 October 2005
DATE OF JUDGMENT:	22 February 2006
CASE MAY BE CITED AS:	Mirvac (Docklands) Pty Ltd v La Rocca
MEDIUM NEUTRAL CITATION:	[2006] VSC 48

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Contracts – sale of apartment “off the plan” – whether contract of sale uncertain – alleged uncertainty in description of apartment and improvements – contract not uncertain.

Domestic Building Contract – whether sale of apartment “off the plan” was a “domestic building contract” – Domestic Building Contracts Act 1995 (Vic) s. 3(4) – contract of sale not a domestic building contract.

Trade Practices – misleading and deceptive conduct – alleged representations not established.

Equity – unconscionable conduct – whether purchaser of “off the plan” apartment under a special disability due to complexity of the contract – purchaser under no special disability – whether unconscionable conduct in contravention of s. 51AC of the Trade Practices Act 1974 (Cth) or s. 8A of the Fair Trading Act 1999 (Vic) – no unconscionable conduct by vendor – relevant principles discussed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Burnside QC with Mr P Chiappi	Arnold Bloch Leibler
For the Defendant	Mr J Bolton with Mr W Rimmer	Jerrard & Stuk

TABLE OF CONTENTS

Introduction

Parties and Witnesses

Facts

(1)     The Selling Process
(2)     The Release Day
(3)     The 16th Floor Representation
(4)     Other Representations
(5)     The Contract of Sale
(10)    The Building Contract
(11)    Satisfaction of Conditions Precedent
(12)    The Defendant Defaults

Uncertainty

Domestic Building Contract

Unconscionable Conduct

(1)     Applicable Law
(2)     Was the Defendant under a Special Disability?
(3)     Was the contract of sale fair, just and reasonable?
(4)     Statutory Unconscionable Conduct

Conclusion

HIS HONOUR:

Introduction

The plaintiff is a member of the Mirvac Group of companies. The Mirvac Group is in the business of large‑scale property development. One such development is the “Yarra’s Edge” development in the Docklands precinct in Melbourne (“the development”).

The development involves the construction of a number of buildings by another company in the Mirvac Group, Mirvac Constructions (Vic) Pty Ltd (“the Builder”). The architect for the development is another Mirvac company, HPA Pty Ltd (“the architect”). Another company in the Mirvac Group, Mirvac Real Estate Pty Ltd (“Mirvac Real Estate”), was responsible for marketing apartments in the development.

The development involves a number of stages. At present, four buildings have been constructed. This dispute involves an apartment in the second building (“the Building”). The Building comprises a low rise podium structure and two towers. One tower is referred to as the “West Tower”, or “Tower 3”. The other is referred to as the “East Tower”, or “Tower 2”. The apartment at issue is Apartment 1201 on the 12^th floor of the West Tower, or Tower 3, together with the appurtenant carparks and a storage…

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.

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Details

Case: [2006] VSC 48
Decision Date: 22 February 2006

CaseChat Overview and Summary

In the case of Mirvac (Docklands) Pty Ltd v La Rocca, the dispute involved a contract for the sale of an apartment "off the plan" by Mirvac, the developer, to La Rocca, the purchaser. The matter was heard in the Supreme Court of Victoria. La Rocca sought to argue that the contract was uncertain due to vague descriptions of the apartment and its improvements. Additionally, La Rocca contended that the contract was a domestic building contract, which would subject it to the Domestic Building Contracts Act 1995 (Vic), and also alleged misleading and deceptive conduct and unconscionable conduct by Mirvac.

The court was required to determine whether the contract was uncertain, whether it constituted a domestic building contract, and whether Mirvac engaged in misleading or deceptive conduct or unconscionable conduct. Regarding the uncertainty of the contract, the court held that there was sufficient description to make the contract certain. The court also found that the contract did not qualify as a domestic building contract under the Domestic Building Contracts Act 1995 (Vic). The court further dismissed La Rocca's claims of misleading and deceptive conduct and unconscionable conduct, stating that La Rocca was not under a special disability and that there was no evidence of unconscionable conduct by Mirvac.

The Supreme Court of Victoria concluded that the contract was not uncertain, did not constitute a domestic building contract, and that Mirvac did not engage in misleading or deceptive conduct or unconscionable conduct. The court dismissed La Rocca's claims in their entirety. The final orders of the court were that La Rocca pay Mirvac's costs of the proceeding.

Orders