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Rose v Cwalina

Rose v Cwalina

Case [2023] VSC 721 5 December 2023

Specific Performance

Unconscionable Conduct

Contract Formation

Repudiation & Termination

Property Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S CI 2016 05260

BETWEEN:

ALAN WESLEY ROSE	Plaintiff
and
PIOTR MACIEJ CWALINA	Defendant
AND BETWEEN:
PIOTR MACIEJ CWALINA	Plaintiff by Counterclaim
and
ALAN WESLEY ROSE	Defendant to the Counterclaim

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JUDGE:	Tsalamandris J
WHERE HELD:	Melbourne
DATE OF HEARING:	7, 8 and 9 August 2023 (last written submissions received on 3 September 2023)
DATE OF JUDGMENT:	5 December 2023
CASE MAY BE CITED AS:	Rose v Cwalina
MEDIUM NEUTRAL CITATION:	[2023] VSC 721

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REAL PROPERTY – Property dispute – Co-owners of land – Settlement agreement to subdivide and partition land – Alleged prior deed agreement – Proposed orders of consent – Alleged repudiation of settlement agreement – Attempt to rely upon termination notices – Remedies available – Judicial sale of land considered – Specific enforcement of settlement agreement ordered – Gunns Limited v Balani Pty Ltd [2011] FCA 451 – Balani Pty Ltd v Gunns Limited [2011] FCAFC 153 – Siemens Gamesa Renewable Energy Pty Ltd v Bulgana Wind Farm Pty Ltd [2020] VSC 126 – Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 – Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd [1956] VLR 555 – Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497 – Hycenko vVHY Enterprises [2020] VSC 834.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Petrie	Byrnes Legal
For the Defendant	In person

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Relevant pleadings............................................................................................................................ 3

Relevant background facts............................................................................................................... 3

Pleadings not advanced and irrelevant matters......................................................................... 22

Evidence of Mr Rose........................................................................................................................ 25

Evidence of Mr Cwalina................................................................................................................. 27

Evidence of Ms Majak..................................................................................................................... 30

Mr Rose’s submissions................................................................................................................... 30

Mr Cwalina’s submissions............................................................................................................. 33

Analysis.............................................................................................................................................. 37

(1) What is the relevance, if any, of the alleged deed agreement?....................................... 37
(2) Does the settlement agreement constitute an accord and satisfaction between the parties?.............................................................................................................................................. 38
(3) Has Mr Rose repudiated the settlement agreement?....................................................... 43
Clause 1............................................................................................................................... 44
Clauses 2 and 3:.................................................................................................................. 44
Clause 4:.............................................................................................................................. 45
Clause 5a:............................................................................................................................ 45
Clause 5b:............................................................................................................................ 45
Clause 5c:............................................................................................................................ 45
Clause 5d:............................................................................................................................ 45
Clause 6:.............................................................................................................................. 46

(4) Should Mr Cwalina be permitted to rely upon the first and or second termination notice?.............................................................................................................................................. 51
(5) Should the Court order specific performance or judicial sale of the properties?........ 53
Principles relevant to summary enforcement............................................................... 54
Inherent power, Rules, legislation and principles relevant to judicial sale.............. 56

Conclusion......................................................................................................................................... 62

HER HONOUR:

Introduction

In 2006, the plaintiff, Mr Rose, and the defendant, Mr Cwalina, became the registered proprietors of a property situated at 1 Geofrey Street, Frankston South, as tenants in common in equal shares (the Geofrey Street property). This property was a vacant block of land at the time of purchase. The following year, they acquired a small strip of land (the revenge strip) at the back of the property, which faced on to Helen Street, Frankston South, and enabled legal access from the rear of…

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 Rose v Cwalina

Details

AGLC: Rose v Cwalina [2023] VSC 721
Case: [2023] VSC 721
Decision Date: 5 December 2023

CaseChat Overview and Summary

In the matter of Rose v Cwalina, the respondents, who are co-owners of certain land, applied for an order enforcing a settlement agreement with the appellant. The respondents sought an order for specific performance of the settlement agreement, which involved the subdivision and partition of the land. The appellant, on the other hand, argued that the settlement agreement had been repudiated and attempted to rely on termination notices as a defence. The case was heard by the Supreme Court of Victoria.

The central legal issues before the court were whether the settlement agreement was still in effect and, if so, whether the court should enforce its terms. The court had to consider the validity of the termination notices, the nature of the remedies available to the respondents, and whether a judicial sale of the land should be considered as an alternative. The court also needed to examine the precedents set by previous cases, such as Gunns Limited v Balani Pty Ltd, Balani Pty Ltd v Gunns Limited, Siemens Gamesa Renewable Energy Pty Ltd v Bulgana Wind Farm Pty Ltd, Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd, Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd, Bell v Knight 34 Langdon Road Pty Ltd, and Hycenko v VHY Enterprises.

The court determined that the settlement agreement remained in force and rejected the appellant's argument that it had been repudiated. The court held that the termination notices were ineffective as they did not comply with the terms of the settlement agreement. The court found that the respondents were entitled to specific performance of the settlement agreement, as the available remedies were inadequate to compensate them for the breach. The court considered a judicial sale of the land but ultimately decided that specific enforcement of the settlement agreement was the most appropriate remedy. The court ordered specific performance of the settlement agreement, directing the parties to proceed with the subdivision and partition of the land as agreed upon.

The court's final orders included the enforcement of the settlement agreement, directing the parties to proceed with the subdivision and partition of the land as agreed. The court dismissed the appellant's claims and counterclaims, finding that the respondents were entitled to specific performance of the settlement agreement. The court also ordered the parties to bear their own costs of the proceedings.

Orders