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Qin v Smith (No. 2)

Qin v Smith (No. 2)

Case [2013] VSC 476 30 August 2013

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2012 05748

BETWEEN:

KATRINA QIN	Plaintiff
v
SIMON SMITH and KAREN SMITH	Defendants

AND BETWEEN:

SIMON SMITH and KAREN SMITH	Plaintiffs by Counterclaim
v
KATRINA QIN and THE REGISTRAR OF TITLES	Defendant by Counterclaim

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2013
DATE OF JUDGMENT:	30 August 2013
CASE MAY BE CITED AS:	Qin v Smith (No. 2)
MEDIUM NEUTRAL CITATION:	[2013] VSC 476

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SALE OF LAND - Vendor and Purchaser – Whether contract requires vendors to give vacant possession at completion – Vendors intimate that they would not give vacant possession at completion - Whether purchaser must tender price on date for completion – Time of the essence – Intimation that vacant possession would not be given relieves purchaser from tendering the balance of the purchase price on the day for settlement - Vendors give notice of rescission – Whether notice valid – Notice not valid and contract remained on foot – Whether term requiring vacant possession a mistake - Whether rectification available – Basis for rectification not established.

PRACTICE AND PROCEDURE – Summary judgment – No real prospects of success – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 – S 63 Civil Procedure Act 2010.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. Hay & Mr R. Watters	Victor Tse & Associates
For the Defendants	Mr T. Sowden	Ken Smith & Associates

HIS HONOUR:

Introduction

The plaintiff, who is the first defendant by Counterclaim (“Purchaser”), applies by summons filed 31 May 2013 for orders pursuant to Part 4.4 of the Civil Procedure Act 2010 that the Counterclaim of the defendants (“Vendors”) be summarily dismissed and that the defendants pay the costs of the proceeding on an indemnity basis.

When the Purchaser’s application came before me on 4 June 2013, I proposed, and the parties’ Counsel agreed, that it may be possible to deal with the application by the parties making written submissions and that I would give judgment based on those submissions, subject to their right to make further oral submissions if a matter outside those submissions arose. That proposal was agreed to by Counsel for the parties and directions were given for the filing and service of Outlines of Submission, which was done.

The dispute arises out of a contract of sale dated 25 July 2012 (“Contract”) under which the Purchaser agreed to purchase from the Vendors the property situate at and known as Unit 312, 86 Macaulay Road, North Melbourne, being the property described in Certificate of Title Volume 11227 Folio 345 (“the Property”). The purchase price was $417 000, with settlement due on 24 September 2012. The contract provided that vacant possession of the property be given on settlement. [1]
[1]The Vendors argued that this was not the proper construction of the Contract, but for reasons given below…

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 Qin v Smith (No. 2)

Details

AGLC: Qin v Smith (No. 2) [2013] VSC 476
Case: [2013] VSC 476
Decision Date: 30 August 2013

CaseChat Overview and Summary

In the case of Qin v Smith (No. 2), the dispute between the parties centred around a contract for the sale of land. The purchasers, Qin, sought vacant possession from the vendors, Smith, at the completion of the sale. The vendors, however, indicated that they would not provide vacant possession on the completion date. The purchasers questioned whether they were required to tender the balance of the purchase price if the vendors did not give vacant possession. The matter was before the court to determine these issues and whether a notice of rescission provided by the vendors was valid, and if the contract could be rectified.

The legal issues that the court had to resolve included whether the contract required the vendors to give vacant possession at completion and if the purchasers were obliged to tender the balance of the purchase price if the vendors failed to provide vacant possession. Additionally, the court needed to determine the validity of the vendors' notice of rescission and whether the contract could be rectified on the basis that the term requiring vacant possession was a mistake.

The court held that the contract did not explicitly require the vendors to give vacant possession at completion, but the vendors' intimation that they would not provide vacant possession relieved the purchasers from their obligation to tender the balance of the purchase price on the day for settlement. The court found that the vendors' notice of rescission was not valid, and therefore, the contract remained in effect. Furthermore, the court determined that the basis for rectification of the contract was not established, as the argument that the term requiring vacant possession was a mistake was not substantiated.

The court granted the purchasers summary judgment under section 63 of the Civil Procedure Act 2010, finding that the vendors had no real prospect of successfully defending the claims. The vendors' appeal was dismissed, and the contract remained enforceable with the terms as agreed. The purchasers were entitled to vacant possession at the completion of the sale, and the vendors were required to provide this to the purchasers.

Orders