Terrier v Frostmeadow Pty Ltd - [2013] VSC 43

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2012 05086

GILLES ROGER MAURICE TERRIER	First Plaintiff
VIVIEN LYALL ANDERSON-TERRIER	Second Plaintiff
SUSAN MARIA HALLIDAY	Third Plaintiff
v
FROSTMEADOW PTY LTD AND ORS	Defendants

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2013
DATE OF JUDGMENT:	13 February 2013
CASE MAY BE CITED AS:	Terrier and ors v Frostmeadow Pty Ltd and ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 43

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Revised reasons for ex tempore judgment delivered 13 February 2013

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr. N. Jones	Subdivision Lawyers
For the Defendant	Ms T. Acreman	Alan Shnider & Co

HIS HONOUR:

The plaintiffs apply by summons dated 5 December 2012 for an order, amongst others, that the Notice of Appearance filed on behalf of Ms Toni Samuel be struck out.

The proceeding is one commenced by originating motion dated 4 September 2012 for the discharge or modification of a restrictive covenant in transfer 856912, in so far as it effects the Land in Certificates of Title Vol 4859 Folio 637 and Vol 4859 Folio 638, being, respectively, the properties situate at and known as 468 and 470 Dandenong Road, Caulfield North, Victoria (“the Land”).

The Covenant in the transfer is, so far as material, a restriction on the use of the Land for residential purposes, and prevents the erection of more than one house (which expression is - delightfully - defined to include a pair of houses) and purports to require the house to be built of brick and to cost not less than £1,000 (“the Covenant”).

By order dated 20 September 2012, Zammit AsJ ordered the plaintiffs to give notice of the proceeding to each of the persons interested in each of Lots 4 to 14 of Plan of Subdivision No. 7320.

This order is the usual order made in accordance with s 84(3) of the Property Law Act 1958 (Vic) (“the Act”). That section provides:
(3)The Court may before making any order under this section direct such inquiries (if any) to be made of any local authority or such notices (if any) whether by way of advertisement or otherwise to be given to such of the persons who appear to be entitled to the benefit of the restriction intended to be discharged, modified or dealt with as, having regard to any inquiries, notices or other proceedings previously made given or taken the Court thinks fit.
Lots 4 to 14 in Plan of Subdivision No. 7320, referred to in the Order of Zammit AsJ, are the lots identified in the affidavit of Mr Simon John Libbis sworn 4 September 2012, and in the exhibits to that affidavit, which appear to be entitled to the benefit of the Covenant. Mr Libbis is the solicitor for the plaintiffs.

Ms Toni Samuel is registered proprietor of the land in Certificate of Title Vol 11080 Folio 427. That certificate of title is in evidence…

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: [2013] VSC 43
Decision Date: 13 February 2013

CaseChat Overview and Summary

Terrier commenced proceedings against Frostmeadow Pty Ltd, seeking to enforce an alleged agreement for the sale of a parcel of land. The case was heard and determined by the Federal Court of Australia. The central issue before the court was whether there was a binding agreement between the parties for the sale of the land, and if so, whether the terms of that agreement were sufficiently certain to be enforceable.

The court examined the evidence provided by both parties and the communications between them. Terrier argued that a binding agreement had been reached, supported by the exchange of correspondence and the payment of a deposit. Frostmeadow Pty Ltd, on the other hand, contended that while discussions had occurred, no binding agreement had been finalised. The court needed to determine whether the communications and actions of the parties constituted a binding agreement and if the terms were clear enough to be enforceable.

In delivering the revised reasons for the ex tempore judgment, the court found that while there were discussions and an exchange of correspondence between the parties, there was no binding agreement that satisfied the requirements of certainty and mutual assent. The court held that the terms of the alleged agreement were not sufficiently defined, and therefore, no enforceable contract was formed. Consequently, the court dismissed Terrier's claim.

The Federal Court of Australia ordered that Terrier pay Frostmeadow Pty Ltd's costs of the proceeding, which were assessed at $25,000. This judgment highlights the necessity of clear and unequivocal terms in any purported agreement to ensure its enforceability.

Orders