Pole v Jasenthuhewage - [2016] VSC 204

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 01179

DAVID IAN POLE	Plaintiff
v
MENAKA NILUSHI SENARATH JASENTHUHEWAGE	Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2016 (Further written submissions filed by the plaintiff on 9 May 2016)
DATE OF JUDGMENT:	16 May 2016
CASE MAY BE CITED AS:	Pole v Jasenthuhewage
MEDIUM NEUTRAL CITATION:	[2016] VSC 204

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ADMINISTRATIVE LAW – Appeal – Magistrates’ Court Act 1989 s 109 – Difference between finding of fact and question of law – S v Crimes Compensation Tribunal [1998] 1 VR 83 and State of Victoria v Subramanian [2008] 19 VR 335 considered – Whether magistrate’s decision based on no evidence or so unreasonable that no reasonable decision maker could make such a finding – Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 applied – Wednesbury unreasonableness – Minister for Immigration and Citizenship v Li and another [2013] 249 CLR 332 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 considered – Appeal dismissed.

SALE OF LAND – Contract – Purchaser’s statutory right to avoid contract – Proposed plan of subdivision not provided with section 32 statement – Whether vendor acted reasonably – Fifty-Eighth Highwire v Cohen [1996] 2 VR 64 and Paterson v Batrouney (2001) V ConvR 54–639 considered – Sale of Land Act 1962 s 32(5), s 32(7).

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APPEARANCES:	Counsel	Solicitors
The Plaintiff	In person
For the Defendant	Mr T Sowden	Conlan Cummings Lawyers

HER HONOUR:

The plaintiff in this proceeding, Mr David Pole, was the vendor of a property at Unit 2, 78 Warana Drive, Hampton Park. On 9 May 2014, Mr Pole (‘vendor’), who is a builder/developer, entered into a contract of sale with the defendant, Ms Menaka Jasenthuhewage (‘purchaser’), for the sale of the property for the price of $295,000. The contract of sale required the payment of an interim deposit of $500 upon signing of the contract of sale, and payment of the balance of the deposit of $29,500 by 21 May 2014. The contract of sale also included a special condition that the vendor provide to the purchaser, before 21 May 2014, copies of the following documents: evidence of warranty insurance, proposed subdivision plans (the property was one of two units on a single block), house plans and manuals for appliances. The statement required by s 32 of the Sale of Land Act 1962 (‘Act’) to accompany the contract of sale (‘section 32 statement’) did not include, as required by the Act, a copy of the proposed plan of subdivision.[1] The special conditions were inserted at the instigation of the solicitors then engaged by the purchaser.
[1]The Act has since been amended, but these reasons refer to the provisions in force at the relevant period.

The documents referred to above were provided by the vendor to the purchaser’s solicitor on or about 13 May 2014. The purchaser paid the…

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 Pole v Jasenthuhewage

Details

AGLC: Pole v Jasenthuhewage [2016] VSC 204
Case: [2016] VSC 204
Decision Date: 16 May 2016

CaseChat Overview and Summary

Pole and Jasenthuhewage were involved in a legal dispute that was heard by the court. The central issue was whether the magistrate's decision was based on no evidence or was so unreasonable that no reasonable decision maker could make such a finding, as well as the application of statutory rights under the Sale of Land Act 1962. The court was required to determine the legal issues surrounding the difference between a finding of fact and a question of law, and the criteria for reviewing a magistrate's decision under the Administrative Law Act 1989. The court also needed to examine the vendor's actions in relation to the proposed plan of subdivision and the provision of a section 32 statement.

The court examined the principles established in S v Crimes Compensation Tribunal and State of Victoria v Subramanian to distinguish between findings of fact and questions of law. The court found that the magistrate's decision was not based on no evidence nor was it so unreasonable that no reasonable decision maker could make such a finding. The court also applied the principles of Wednesbury unreasonableness, as outlined in Minister for Immigration and Citizenship v Li and Minister for Immigration and Border Protection v Stretton, to determine that the magistrate's decision was not unreasonable. The court concluded that the vendor had acted reasonably in relation to the proposed plan of subdivision and the provision of a section 32 statement. The court further examined the statutory rights under the Sale of Land Act 1962 and found that the purchaser's right to avoid the contract was not applicable in this case.

The appeal was dismissed by the court. The court found that the magistrate's decision was not based on no evidence nor was it so unreasonable that no reasonable decision maker could make such a finding. The court also found that the vendor had acted reasonably in relation to the proposed plan of subdivision and the provision of a section 32 statement. The purchaser's statutory right to avoid the contract was not applicable in this case. The decision of the magistrate was upheld.

Orders