Tan v Russell - [2016] VSC 93

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S CI 2014 02550

ENG KIAT TAN	First Plaintiff
CHENG LO	Second Plaintiff
v
THOMAS JOHN RUSSELL	Defendant

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JUDGE:	CAMERON J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 - 21 October 2015
DATE OF JUDGMENT:	11 March 2016
CASE MAY BE CITED AS:	Tan v Russell
MEDIUM NEUTRAL CITATION:	[2016] VSC 93

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PROPERTY – Contract of Sale – Agency – Where the plaintiffs purportedly exercised their statutory rights under s 31 of the Sale of Land Act 1962 – Where plaintiffs sent a notice of termination to the real estate agent by email – Whether plaintiffs validly terminated the Contract of Sale through the real estate agent – Whether the real estate agent had authority to receive the notice – Sale of Land Act 1962 s 31.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	P.R. Best	Kalus Kenny Intelex
For the Defendant	R. Hay QC R.T. Wodak	Dellios West & Co

HER HONOUR:

Background

This case is about whether the plaintiffs, Mr Eng Tan and Dr Cheng Lo, properly exercised their rights under the ‘cooling off’ provisions of the Sale of Land Act 1962 (‘the Act’) to terminate a contract of sale in respect of a property at 43 Erin Street, Richmond (‘the Property’).

Mr Thomas John Russell, the defendant, was the registered proprietor of the Property. This proceeding concerns Mr Russell’s failed attempt to sell the Property to Mr Tan and Dr Lo.

The relevant facts

In early 2014, Mr Russell decided to sell the Property. On 26 February 2014, he signed an exclusive auction authority appointing Marshall White Real Estate (‘Marshall White’) as estate agents for the sale of the Property and Mr Andrew Gibbons of Marshall White was allocated the Property. Mr Gibbons was assisted by Mr Chris Burne, an employee of Collins Simms, a real estate agency associated with Marshall White.

The first and second plaintiffs, Mr Tan and Dr Lo, inspected the Property on 29 March 2014 with Dr Jean Low. Mr Tan subsequently inspected the Property with an architect on 1 April 2014. On 3 April 2014, Mr Tan and Mr Gibbons exchanged a number of text messages regarding the proposed purchase and settlement terms for the Property. Mr Tan and Mr Gibbons continued to communicate extensively by text message until 9 April 2014 about the Property.

At approximately 12pm on 3 April 2014, Mr Tan and Dr Lo met with Mr Gibbons and made an offer to purchase the Property for $3.5 million. They provided a bank cheque for $350,000 for a deposit, payable to Marshall White Trust Account and then signed two copies of a contract of sale.

At approximately 2:25pm that day, that is, 3 April 2014, Mr Tan received a phone call from Mr Gibbons advising him that the defendant had rejected the offer of $3.5 million.

There is some dispute between the parties about the events of the following day. However, as these events are…

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 Tan v Russell

Details

AGLC: Tan v Russell [2016] VSC 93
Case: [2016] VSC 93
Decision Date: 11 March 2016

CaseChat Overview and Summary

In the case of Tan v Russell, the plaintiffs sought to terminate a contract for the sale of land through their real estate agent. The defendant, Russell, argued that the termination was not valid as the real estate agent did not have the authority to receive such a notice. The dispute was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the plaintiffs had validly exercised their rights under section 31 of the Sale of Land Act 1962 by sending a notice of termination via email to the real estate agent, and whether the real estate agent had the authority to receive the notice on behalf of the plaintiffs. The court had to determine if the statutory requirements were met and if the agency relationship was properly established to allow the termination to be effective.

The court found that the plaintiffs had correctly exercised their statutory rights under section 31 of the Sale of Land Act 1962 by sending a notice of termination to the real estate agent. It was determined that the email was an appropriate means of communication in modern circumstances. The court further held that the real estate agent did have the necessary authority to receive the notice on behalf of the plaintiffs, as evidenced by the terms of the agency agreement and the standard practice in the industry. Therefore, the termination of the contract was upheld as valid.

The court ordered that the contract for the sale of land between the parties be terminated, effective from the date of the notice sent by the plaintiffs through their real estate agent. The decision underscores the importance of clear communication and the recognition of agency authority in property transactions.

Orders