Profit Gain Developments (Aust) Pty Ltd v Charnley Vale Pty Ltd - [2002] VSC 488

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7126 of 2002

PROFIT GAIN DEVELOPMENTS (AUST) PTY LTD (ACN 007 084 148)

and

MEI LAN TSOI POON

Firstnamed Plaintiff

Secondnamed Plaintiff

CHARNLEY VALE PTY LTD (ACN 056 928 422)

Defendant

No. 7378 of 2002

CHARNLEY VALE PTY LTD (ACN 056 928 422)

Plaintiff

MEI LAN TSOI POON

and

REGISTRAR OF TITLES

Firstnamed Defendant

Secondnamed Defendant

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 & 29 October 2002
DATE OF JUDGMENT:	13 November 2002
CASE MAY BE CITED AS:	Profit Gain Developments v Charnley Vale
MEDIUM NEUTRAL CITATION:	[2002] VSC 488

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Transfer of proceeding – Matter within the jurisdiction of both Supreme Court and County Court – Courts (Case Transfer) Act, section 30
County Court Act 1958 – section 37
Courts (Case Transfer) Act 1991 – section 30
Property Law Act 1928 – sections 3, 49(2),
Transfer of Land Act 1958 – sections 4(1), 90(3), 118

Bantick v Boss Properties Pty Ltd (No 2) [2000] VSC 165

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs in No 7126 and the Firstnamed Defendant in No 7378	Mr S Chizik	C Tang & Associates
For the Defendant in No 7126 and the Plaintiff in No	Mr P Barton	A Agrotis & Associates

7378

HER HONOUR:

This is the return of a summons filed on 17 October 2002 seeking the transfer to the County Court of proceeding Number 7126 of 2002.

By a contract dated 15 February 2002 the defendant in proceeding No 7126 of 2002 and plaintiff in proceeding No 7378 of 2002 (“Charnley Vale”) sold to the secondnamed plaintiff in proceeding No 7126 of 2002 and firstnamed defendant in proceeding No 7378 of 2002 (“Mrs Tsoi”) and/or her nominee the property known as 31 Peter Street Box Hill North and being the whole of the land described in Certificate of Title Volume 8051 Folio 263 (“the land”) for a purchase price of $500,800 inclusive of GST. A total of $50,800 was paid by way of deposit, $10,000 on the signing of the contract and the balance on 21 March 2002. On 15 March 2002 Mrs Tsoi nominated the firstnamed plaintiff in proceeding No 7126 of 2002 (“Profit Gain”) to be the purchaser under the contract.

In proceeding No 7126 of 2002 (“the deposit proceeding”) Profit Gain and Mrs Tsoi applied under section 49(2) of the Property Law Act 1928 (“the PLA”) for:

(i)a declaration that the contract has been avoided by the plaintiffs by reason of the failure of the defendant to comply with section 137B(2) of the Building Act 1993;
(ii)a declaration that the contract has been rescinded by the plaintiffs by reason of the defendant’s failure to comply with section 32(1A)(c) of the Sale of Land Act 1962; and
(iii)an order for the return of the deposit.

In proceeding No 7378 of 2002 (“the caveat proceeding”) Charnley Vale seeks an order that the caveat No AB26255Y lodged by or on behalf…

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: [2002] VSC 488
Decision Date: 13 November 2002

CaseChat Overview and Summary

The dispute in Profit Gain Developments (Aust) Pty Ltd v Charnley Vale Pty Ltd involves the transfer of a legal proceeding from the County Court to the Supreme Court. The original case was initiated in the County Court by Charnley Vale Pty Ltd, which sought to have a contract declared void and for the return of a deposit paid under that contract. The defendant, Profit Gain Developments (Aust) Pty Ltd, contested the claim and applied for the case to be transferred to the Supreme Court, citing the monetary value of the claim exceeding the jurisdictional limit of the County Court.

The central legal issues before the court were whether the matter was within the jurisdiction of both the Supreme Court and the County Court and whether the transfer of the proceeding was appropriate under the Courts (Case Transfer) Act 1991. The court had to consider the monetary value of the claim and the relevant provisions of the County Court Act 1958 and the Courts (Case Transfer) Act 1991. Additionally, the court examined the implications of the Property Law Act 1928 and the Transfer of Land Act 1958 in the context of the proceedings.

The court determined that the monetary value of the claim exceeded the jurisdictional limit of the County Court and that the matter was indeed within the jurisdiction of the Supreme Court. It was held that the criteria for transfer under section 30 of the Courts (Case Transfer) Act 1991 were satisfied. The court found that the transfer was appropriate to ensure that the matter was heard by the court with the appropriate jurisdiction. The reasoning was influenced by the decision in Bantick v Boss Properties Pty Ltd (No 2) [2000] VSC 165, which set a precedent for similar jurisdictional considerations.

The final order of the court was to transfer the proceeding from the County Court to the Supreme Court, allowing the case to proceed in the appropriate jurisdiction. This decision ensures that the parties' rights and the matter's resolution are handled by the court with the correct authority and scope to deal with the monetary value involved in the dispute.

Orders