JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2013
DATE OF JUDGMENT:	22 August 2013
CASE MAY BE CITED AS:	Putt & Anor v Perfect Builders Pty Ltd
MEDIUM NEUTRAL CITATION:	[2013] VSC 442

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VENDOR AND PURCHASER – Sale of land – Summary procedure under s 49 Property Law Act 1958 – Contract for sale of apartment conditional on loan of specified amount being obtained from designated lender – Right to terminate contract conditional on purchasers’ immediate application for loan – Right to terminate conditional upon purchasers doing everything reasonably required to obtain loan approval – No evidence of circumstances justifying return of deposit in exercise of discretion under s 49(2) Property Law Act 1958

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A Klotz	Hentys Lawyers
For the Defendant	Mr D P Lloyd	Rudstein Kron Lawyers

HER HONOUR:

The application

This is an application under the summary procedure provided by s 49 of the Property Law Act 1958 for the determination of a question relating to a contract of sale of land.

The plaintiffs seek the refund of the deposit of $59,500 which they paid to the defendant in relation to the purchase of Apartment 203, 449 Hawthorn Road, Caulfield South (‘the property’) on signing a contract of sale dated 27 May 2013 (‘the contract’). The deposit has not been released to the defendant vendor and is presently held by its agent .

Section 49 Property Law Act 1958

Section 49 of the Property Law Act is in these terms:

Applications to the Court by vendor and purchaser
(1)A vendor or purchaser of any interest in land, or their representatives respectively, may apply to the Court, in respect of any requisitions or objections, or any claim for compensation, or any other question arising out of or connected with the contract (not being a question affecting the existence or validity of the contract), and the Court may make such order upon the application as to the Court may appear just, and may order how and by whom all or any of the costs of and incident to the application are to be borne and paid.
(2)Where the Court refuses to grant specific performance of a contract, or in any action for the return of a deposit, the Court may, if it thinks fit, order the repayment of any deposit.
(3)This section shall apply to a contract for the sale or exchange of any interest in land.

The plaintiffs say that, on its proper construction, general condition 14 of the contract entitles them to have the deposit returned. In the alternative, they…

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 Putt v Perfect Builders Pty Ltd

Details

AGLC: Putt v Perfect Builders Pty Ltd [2013] VSC 442
Case: [2013] VSC 442
Decision Date: 22 August 2013

CaseChat Overview and Summary

In the matter of Putt v Perfect Builders Pty Ltd, the dispute involved the sale of an apartment in Melbourne, Victoria. The vendor, Putt, had entered into a contract with the purchaser, Perfect Builders Pty Ltd, for the sale of the property, which was conditional upon the purchaser obtaining a loan of a specified amount from a designated lender. The contract stipulated that the vendor had the right to terminate the agreement if the purchaser failed to apply for the loan immediately and did everything reasonably required to secure the loan approval. The purchaser did not secure the loan, and the vendor terminated the contract and sought the return of the deposit. The purchaser then applied to the court for a review of the termination, arguing that the vendor had not exercised the discretion under section 49(2) of the Property Law Act 1958 appropriately.

The primary legal issue before the court was whether the vendor had the right to terminate the contract for sale of land and demand the return of the deposit. The court needed to determine whether the vendor had exercised the discretion to return the deposit under section 49(2) of the Property Law Act 1958 appropriately. The court also had to consider whether the purchaser had done everything reasonably required to secure the loan approval and whether there were any circumstances that justified the return of the deposit. The court needed to weigh the statutory provisions against the terms of the contract and the actions of the parties.

The court found that the vendor had the right to terminate the contract for sale of land and demand the return of the deposit. The court held that the vendor had exercised the discretion under section 49(2) of the Property Law Act 1958 appropriately, as there was no evidence of circumstances that justified the return of the deposit. The court also found that the purchaser had not done everything reasonably required to secure the loan approval, as they had not taken all necessary steps to obtain the loan. The court held that the purchaser's failure to secure the loan was a breach of the contract, and the vendor was entitled to terminate the contract and demand the return of the deposit. The court dismissed the purchaser's application for a review of the termination.

The court ordered that the vendor was entitled to retain the deposit and that the purchaser pay the vendor's costs of the proceedings. The court held that the contract for sale of land was terminated, and the purchaser had no further rights or obligations under the contract. The court also held that the vendor was entitled to take any necessary steps to protect their interests, including the sale of the property to another party. The court's decision clarified the rights and obligations of vendors and purchasers in the context of conditional contracts for the sale of land and the exercise of discretion under section 49(2) of the Property Law Act 1958.

Orders