Paterson v Batrouney & anor - [2000] VSC 313

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 5791 of 2000

JANET PATERSON	Plaintiff
v.
VICTOR BATROUNEY AND ANOTHER	Defendants

---

JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 AUGUST 2000
DATE OF JUDGMENT:	17 AUGUST 2000
CASE MAY BE CITED AS:	PATERSON v. BATROUNEY AND ANOR.
MEDIUM NEUTRAL CITATION:	[2000] VSC 313

---

CATCHWORDS: Sale of land – Contract – Vendors section 32 statement - Purchaser's statutory right to avoid contract – Whether vendor acted reasonably – Sale of Land Act 1962 (No. 6975), ss.32(5) and 32(7).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	P. Cawthorn	Coadys
For the Defendants	R.C. Wells	John D. Crump

HIS HONOUR:

The defendants Victor Batrouney and Muriel Elsie Batrouney are the owners of a property at 30-34 Whitecliffes Road, Rye on the Mornington Peninsula (the property).

The property is 4,000 square metres in area. Erected upon it is a six bedroom dwelling constructed of cement sheeting and bricks.

In 1998 the defendants instructed their solicitor John Crump to act on their behalf in relation to the proposed sale of the property. In the course of so acting Mr. Crump prepared an appropriate vendors statement in accordance with the provisions of s.32 of the Sale of Land Act 1962 (the Act). To enable him to do so he obtained a planning certificate which showed that at that time the property was zoned "Highdunes Residential" under the Flinders Planning Scheme. That information was duly set out in the vendors statement.

No sale of the property was effected in 1998.

In early 1999 segments of five municipalities on the Mornington Peninsula were amalgamated to form the new Mornington Peninsula Shire. The property was located in one such segment and as from 5 May 1999 became covered by the Mornington Peninsula Planning Scheme. Under that scheme the property is zoned "Residential 1".

In December 1999 the defendants engaged K. & M. Norris Real Estate Pty. Ltd. (K. & M. Norris) as their real estate agent to effect a sale of the property.

Shortly before Christmas 1999 Mr. Crump was instructed by the defendants, who are quite elderly people, to forward urgently to K. & M. Norris a section 32 statement as they were again offering the property for sale on the market, and hoped to effect a sale of it over the Christmas break.

Having regard to the urgency with which Mr. Crump was asked to prepared the vendors statement neither he nor his staff checked to see whether there had been any change in the planning scheme but relied on the planning certificates received in 1998 and prepared the new section 32 statement specifying in it that the property was zoned "Highdunes Residential" pursuant to the Flinders Planning Scheme.

By a contract note dated 4 April 2000 the defendants agreed to sell the property to the plaintiff Janet Paterson for the sum of $295,500 with settlement of the sale to be effected on 31 May 2000.

On or about 8 May 2000…

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 Paterson v Batrouney & anor

Details

AGLC: Paterson v Batrouney [2000] VSC 313
Case: [2000] VSC 313
Decision Date: 17 August 2000

CaseChat Overview and Summary

The case of Paterson v Batrouney & anor involved a dispute between the vendor, Mr Paterson, and the purchasers, Mr and Mrs Batrouney, over the sale of residential land. The dispute arose due to the vendors' section 32 statement and the purchasers' statutory right to avoid the contract under the Sale of Land Act 1962. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the vendor had acted reasonably in providing the section 32 statement, which could potentially allow the purchasers to avoid the contract. The court was also required to determine if the vendor's actions warranted the purchasers' right to avoid the contract under the relevant sections of the Act.

The court considered the obligations of the vendor under the Sale of Land Act 1962, specifically section 32, which mandates the provision of a written statement regarding the property. The court also assessed whether the vendor's actions were reasonable and if they complied with the statutory requirements. The court found that the vendor had not acted reasonably in providing the section 32 statement, which led to the purchasers' right to avoid the contract. The court determined that the vendor's failure to act reasonably constituted a breach of their obligations under the Act, and as a result, the purchasers were entitled to avoid the contract.

In conclusion, the court found in favour of the purchasers, granting them the right to avoid the contract due to the vendor's unreasonable actions. The court emphasised the importance of vendors fulfilling their obligations under the Sale of Land Act 1962 and the potential consequences of failing to do so. The final orders of the court allowed the purchasers to terminate the contract and seek any appropriate remedies for the vendor's breach of the statutory obligations.

Orders