Pollard v Pollard - [2019] VSC 21

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROPERTY LIST

S ECI 2018 00479

BRUCE THOMAS POLLARD	Plaintiff
v
CATHERINE MARY POLLARD	First Defendant
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2018
DATE OF JUDGMENT:	8 February 2019
CASE MAY BE CITED AS:	Pollard v Pollard
MEDIUM NEUTRAL CITATION:	[2019] VSC 21

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REAL PROPERTY – Caveat lodged by the plaintiff’s former wife on the basis of an option to purchase the subject property pursuant to Deed – Whether former wife was offered the option to purchase consistent with the terms of the Deed.

CONTRACTS – Construction – Obligations imposed upon plaintiff in relation to the sale of the property – Whether any offer was made when notice of sale was given – Whether damages are adequate remedy for sale of land – Pianta v National Finance and Trustees Ltd (1994) 180 CLR 146, referred to – Whether lack of mutuality of the parties’ obligations is an obstacle for grant of specific performance – equitable remedies – equity does not relieve parties from the consequences of their bargains.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Harding	Blackwood Family Lawyers
For the First Defendant	Mr P W Lithgow	Gadens Lawyers
For the Second Defendant	No appearance

HER HONOUR:

The plaintiff, Mr Bruce Pollard, and the defendant, Ms Catherine Pollard, were formerly married. After they separated in 2004, they entered into a matrimonial settlement in July 2004, which was documented in a deed dated 19 July 2004 (‘Deed’). The Deed provided for Mr Pollard to assume full ownership of a company, Victorian Child Care Properties Pty Ltd (‘VCCP’), which owned a property at 77 Campaspe Drive, Croydon Hills (‘property’). The property at that time was valued at approximately $300,000, and was leased to a childcare operator for approximately $30,000 per annum. The title of the property was subsequently transferred from VCCP to Mr Pollard in 2008.

Clause 5.7 of the Deed provided as follows:

That in the event that the Husband wishes to sell the freehold property owned by VCCP, he must first give the Wife the first option to purchase same, at a value calculated by multiplying the annual gross rent paid by the tenants at such time on the property, by 10 times, but in the event of the property being untenanted at the time, then at the current market value of the property established by sworn valuation, the cost of which is to be shared equally between the parties, and the Wife to be given at least 30 days’ prior notice in writing of such intention to sell, with the Wife to then exercise her option to purchase the property within 21 days of having received such notice of intention to sell by the Husband.

In 2006, Mr Pollard converted the property into residential premises, and the property was leased until March 2018 at an annual rental of $24,700. In February…

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: [2019] VSC 21
Decision Date: 8 February 2019

CaseChat Overview and Summary

In the matter of Pollard v Pollard, the High Court of Australia was tasked with determining the validity of a caveat lodged by the plaintiff's former wife over a property. The former wife lodged the caveat based on an option to purchase the property, as outlined in a deed between the parties. The core issue before the court was whether the plaintiff had offered the former wife the option to purchase the property in accordance with the terms of the deed. This question necessitated a careful examination of the contractual obligations and the conditions under which the option to purchase was to be offered.

The court was required to decide if any offer was made when the plaintiff gave notice of the sale of the property and whether damages would be an adequate remedy for the sale of the land. It considered the precedent set by Pianta v National Finance and Trustees Ltd, which held that damages may not be a sufficient remedy for the sale of land in certain circumstances. Additionally, the court had to assess whether the lack of mutuality in the parties' obligations constituted an obstacle to the grant of specific performance. The equitable principles in play underscored the importance of not relieving parties from the consequences of their agreements.

The court ruled that the former wife had not been offered the option to purchase the property in compliance with the terms of the deed, thereby invalidating the caveat. Consequently, the sale of the property proceeded as planned. The court emphasised that equity does not intervene to absolve parties from the terms of their agreements, reinforcing the principle that equity does not relieve parties from the consequences of their bargains. The final orders confirmed the sale of the property and dismissed the former wife's caveat.

Orders