KIRE SIMCEVSKI	Plaintiff/First Defendant by Counterclaim
v
ALAN ROBERT DIXON	Defendant/Plaintiff by Counterclaim
and
REGISTRAR OF TITLES	Second Defendant by Counterclaim

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20–23 MARCH 2017
DATE OF JUDGMENT:	19 APRIL 2017
CASE MAY BE CITED AS:	SIMCEVSKI v DIXON
MEDIUM NEUTRAL CITATION:	[2017] VSC 197

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PROPERTY – Principles of construction – Did the contract for the sale of land expressly or impliedly entitled the purchaser to access to the property to undertake investigations of contamination for valuation purposes?

CONTRACT – Principles of the duty to co-operate – Did the duty to co-operate require the vendor to permit the purchaser to make investigations?

CONTRACT – Prevention principle – Did the vendor’s refusal to permit investigations disentitle the vendor from exercising a right to rescind?

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff/First Defendant by Counterclaim	Mr M C McKenzie	Frank J Horvat & Co Pty Ltd
For the Defendant/Plaintiff by Counterclaim	Mr A Panna QC	Nedovic Lawyers

HIS HONOUR:

The plaintiff’s claim is for damages and the return of the deposit following a termination of a contract of sale dated 14 August 2015 (‘the Contract’) for the sale of land known as 70 Charles Street, Seddon, Victoria and more particularly described in Certificates of Title Volume 7261 Folio 196 and Volume 4762 Folio 347 (‘the property’).

The defendant counterclaims alleging that, pursuant to the terms of the contract, he was entitled to both terminate the contract; and retain the deposit paid of 5% of the purchase price and to payment of a further 5% of the purchase price — namely $175,000.

The fundamental issue raised in the proceeding is the right of a purchaser to carry out certain investigations of a property, prior to settlement, for valuation purposes. As is common practice, the Contract contained no term expressly permitting an inspection for the purpose of a valuation.[1] For the reasons set out below, in this case, I have found that the investigations, which were requested by the purchaser (as required by the proposed lender), were not permitted under the Contract.
[1]The Contract did include General Condition 22 of the REIV/Law Institute of Victoria form dated September 2014 which provides ‘The purchaser and/or another person authorised by the purchaser may inspect the property at any reasonable time during the 7 days preceding and including the settlement day’.

The relevant facts

On 14 August 2015, the plaintiff and the defendant entered into the Contract for a purchase price of $3,500,000 payable by a deposit of 5% (being $175,000) and the balance of $3,325,000 payable on the settlement date (being 31 March 2016).

The special conditions of the contract included the following:

11. Contamination
11.1 Definitions
In this special condition:
Contaminant means a solid, liquid, gas, odour, temperature, sound, vibration, radiation or substance including all hazardous substances and any pollutant or contaminant defined as such…

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 Simcevski v Dixon

Details

AGLC: Simcevski v Dixon [2017] VSC 197
Case: [2017] VSC 197
Decision Date: 19 APRIL 2017

CaseChat Overview and Summary

In Simcevski v Dixon, the dispute arose between the vendor, Simcevski, and the purchaser, Dixon, regarding the sale of land. The matter was heard in the Supreme Court of New South Wales. The primary issue was whether the contract for the sale of land contained an express or implied term that would entitle the purchaser to access the property for the purpose of investigating potential contamination as part of their valuation. Additionally, the court considered whether the vendor had a duty to cooperate by allowing such investigations and whether the vendor's refusal to permit these investigations barred them from exercising a right to rescind the contract.

The court examined the contract to determine if there was any express provision or implied term that would allow the purchaser access to the property for the specific purpose of investigating contamination. It was noted that the contract did not expressly grant such access, but the court also considered whether an implied term could be read into the contract based on the circumstances and the expectations of the parties. The court also evaluated whether the vendor's refusal to permit the investigations constituted a breach of any implied duty to cooperate, which might affect the purchaser's ability to exercise a right to rescind. The prevention principle was applied to assess whether the vendor's actions could preclude them from asserting a right to rescind due to the purchaser's inability to investigate the property.

After thorough analysis, the court concluded that the contract did not expressly or impliedly entitle the purchaser to access the property for the purpose of investigating contamination. Furthermore, the court found that there was no implied duty to cooperate that would require the vendor to permit such investigations. Additionally, the court determined that the vendor's refusal to permit investigations did not prevent them from exercising a right to rescind the contract, as the prevention principle did not apply in this context. Therefore, the court ruled in favour of the vendor, upholding their right to rescind the contract without any bar due to their refusal to permit investigations.

Orders