Shaw v Yarranova Pty Ltd - [2005] VSC 94

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 9046 of 2003

JOHN RASHLEIGH SHAW	Plaintiff
v
YARRANOVA PTY LTD & ANOTHER	Defendants

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June, 4 November 2004
DATE OF RULING:	5 April 2005
MEDIUM NEUTRAL CITATION:	[2005] VSC 94

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Real property – removal of caveat – nature of application to remove caveat under s.90(3) of the Transfer of Land Act 1958 – whether application can be made by summons on interlocutory basis

Practice and procedure – summary judgment – requirement of affidavit in support

Real property – contract of sale – application to remove caveat – dispute as to purchaser’s obligation to pay balance of purchase price –- whether vendor prevented from seeking payment of balance of purchase price by s.42 of the Domestic Building Contracts Act

Domestic Building Contracts Act 1995 – sections 42, 132
Supreme Court (General Civil Procedure) Rules 1996 – rule 22.03(1)
Transfer of Land Act 1958 - section 90(3)

Black Creek Deer Farm Pty Ltd v Australia & New Zealand Banking Group Ltd (Supreme Court of Victoria, unreported, 31/7/95 per Beach J) followed
Carlton & United Breweries Ltd v Long [1958] VR 539 followed
Elliott v Pound (1889) 15 VLR 356 followed
Hongkong & Macao Glass Manufacturing Co Ltd v Gritton (1886) 12 VLR 128 followed
Martyn v Glennan [1979] 2 NSWLR 234 considered
Mirvac (Docklands) Pty Ltd v Philp [2004] VSC 301 followed
Muntz v Elkington (1891) 17 VLR 23 followed
Seifert v Two Point Pty Ltd [2001] VSC 394 considered

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G D Bloch	Gadens Lawyers
For the Defendants	Mr A Kelly	Arnold Bloch Leibler

HER HONOUR:

Introduction

This case concerns an apartment built as part of the development of the Docklands area in Melbourne. The plaintiff (“the purchaser”) says that he is not obliged to complete the purchase of the apartment, which he bought "off the plan", because it has not been properly constructed. The defendant vendors dispute that assertion and say that the sale contract has been validly brought to an end because the purchaser has wrongfully refused to complete the purchase. In the application before me, the defendants seek the removal of a caveat placed by the purchaser.

By a contract dated 12 April 2000 ("the contract"), the purchaser agreed to buy from the first defendant ("Yarranova") for $665,500 certain property including an apartment in a tower known as The Boyd tower, New Quay, Docklands ("the property")[1]. When construction was completed, the apartment would be situated on the 10^th floor and known as apartment 1002. The purchaser paid the deposit of $66,550 by way of bank guarantee on 10 May 2000.
[1]The property is described as part of the land comprised in certificate of title volume 10269 folio 532, including an apartment (Lot 1002), car parking space (CPT464) and a storage area (ST166).

By a deed dated 13 December 2000, Yarranova assigned its interest…

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: [2005] VSC 94
Decision Date: 5 April 2005

CaseChat Overview and Summary

The parties involved in Shaw v Yarranova Pty Ltd were Shaw, the applicant, and Yarranova Pty Ltd, the respondent. The dispute centred around an application to remove a caveat from a property and the subsequent obligations of the purchaser under a contract of sale. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether an application to remove a caveat under section 90(3) of the Transfer of Land Act 1958 could be made by summons on an interlocutory basis. Additionally, the court needed to determine if the vendor was precluded from seeking payment of the balance of the purchase price due to section 42 of the Domestic Building Contracts Act 1995.

The court considered the nature of the application to remove a caveat and found that it was permissible for the application to be made by summons on an interlocutory basis. The court referred to precedent cases such as Black Creek Deer Farm Pty Ltd v Australia & New Zealand Banking Group Ltd, where it was established that such applications could indeed be made by summons. Furthermore, the court examined the obligations of the purchaser under the contract of sale and the potential impact of section 42 of the Domestic Building Contracts Act. The court noted that while the purchaser had an obligation to pay the balance of the purchase price, the vendor's ability to enforce this obligation was contingent upon the specific provisions of the act.

In its decision, the court ruled that the application to remove the caveat could proceed via summons on an interlocutory basis. The court also found that the vendor was not precluded from seeking payment of the balance of the purchase price by section 42 of the Domestic Building Contracts Act, as the provisions of the act did not apply in this instance. The court's reasoning was grounded in established case law and statutory interpretation, ensuring that the decision was consistent with previous judicial decisions and legislative intent. The final orders of the court would detail the specific procedural steps and any conditions that needed to be met for the removal of the caveat and the enforcement of the purchase price obligations.

Orders