Seifert v Two Point Pty Ltd - [2001] VSC 394

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6539 of 2001

BERNHARD ULRICH SEIFERT and LUXURY DEVELOPMENTS PTY LTD (In Administration) (Receiver and Manager Appointed) (ACN 006 713 935)	Plaintiffs
v
TWO POINT PTY LTD (ACN 004 716 474)	Defendant

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COMMON LAW DIVISION

No. 7356 of 2001

TWO POINT PTY LTD (ACN 004 716 474)	Plaintiff
v
BERNHARD ULRICH SEIFERT and Others	Defendants

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2001
DATE OF JUDGMENT:	19 October 2001
CASE MAY BE CITED AS:	Seifert v Two Point Pty Ltd
MEDIUM NEUTRAL CITATION:	[2001] VSC 394

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Land – removal of caveat – Contract of Sale – purchaser fails to pay balance of price – vendor wrongfully refuses entry to purchaser’s valuer for finance purposes – whether vendor entitled to terminate for non-payment.

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APPEARANCES:	Counsel	Solicitors
For Two Point Pty Ltd	Mr P.R. Best	Scomparin & Bernardi
For Mr Seifert and Luxury Developments Pty Ltd	Mr P.J. Riordan	Strauss & Associates

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HIS HONOUR:

Two Point Pty Ltd (“the Vendor”) at all material times was and is registered as the proprietor of a house property being the land more particularly described in Certificate of Title volume 10286 folio 554 and being the land situate at and known as 9 Mountain View Parade, Rosanna. The Vendor in proceeding number 7356 of 2001 seeks the removal of a caveat lodged on 28 February 2001 as to the title to the land in dealing X342197C. The caveator, Bernhard Ulrich Seifert, asserts an interest in fee simple on the grounds of a Contract of Sale entered into between him and the Vendor dated 17 August 1999. I shall refer to Mr Seifert for convenience as the Purchaser.

The Contract of Sale dated 17 August 1999 was in fact entered into between the Vendor and a purchaser described as “Bernard Seifert and/or nominee”. The price of $335,000 was payable by deposit of 10% on 16 September 1999 with the balance on settlement on 17 November 1999.

The deposit was duly paid but the balance was not. On 7 October 1999 the Purchaser purported to nominate Luxury Developments Pty Ltd, but this nomination has been challenged by the Vendor. It should be noted that Luxury Developments, on 29 May 2001, executed a Deed of Company Arrangement, but nothing turns on this.

Following the default of the Purchaser in November 1999 the Vendor, on 22 November 1999, gave a rescission notice and asserted that the Contract of Sale was rescinded on 8 December 1999.

Nothing appears to have happened for some seven months. On 11 July 2000 the Purchaser and Luxury Developments commenced proceeding number 6058 of 2000 in this Court seeking specific performance of the Contract of Sale or alternatively the return of the deposit. On 14 July 2000 Luxury Developments lodged caveat W913503G as to the title to the land asserting an interest in fee simple on the basis of the Contract 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.

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Details

Case: [2001] VSC 394
Decision Date: 19 October 2001

CaseChat Overview and Summary

Seifert and Two Point Pty Ltd appeared before the court in a dispute regarding the removal of a caveat from land. The issue was whether Seifert, who had entered into a contract of sale with Two Point Pty Ltd, was entitled to terminate the contract due to the vendor's refusal to allow Seifert's valuer access to the property for the purpose of obtaining finance. Two Point Pty Ltd argued that Seifert had failed to pay the balance of the purchase price and thus had no grounds to terminate the contract.

The court was required to determine whether Seifert's right to terminate the contract was affected by Two Point Pty Ltd's refusal to allow Seifert's valuer access to the property. The legal issues included whether Seifert's right to terminate the contract was conditional on the vendor's cooperation and whether the vendor's refusal constituted a breach of contract. The court also needed to assess whether Seifert had a legitimate reason for requiring access to the property for financing purposes.

In examining the matter, the court found that Seifert had a valid reason to require access to the property for obtaining finance. The court held that the vendor's refusal to allow Seifert's valuer access to the property constituted a breach of the contract's terms. As a result, the court determined that Seifert was entitled to terminate the contract. The court concluded that the vendor's wrongful refusal to allow Seifert's valuer access to the property justified Seifert's decision to terminate the contract, notwithstanding Seifert's failure to pay the balance of the purchase price.

The court ordered that the caveat be removed and that Seifert was entitled to terminate the contract of sale with Two Point Pty Ltd. The court also directed that the parties bear their own costs of the proceedings.

Orders