The Ultimate Group Yarrawonga v CR Weygood Pty Ltd

[2013] VCC 383

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT WANGARATTA

COMMERCIAL LIST
GENERAL DIVISION

Case No. CI-12-04586

THE ULTIMATE GROUP YARRAWONGA	Plaintiff
v.
CR WEYGOOD PTY LTD AND ANOR	Defendants

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Wangaratta
DATE OF HEARING:	8 April 2013
DATE OF JUDGMENT:	8 April 2013 (revised 9 April 2013)
CASE MAY BE CITED AS:	The Ultimate Group Yarrawonga v. CR Weygood Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2013] VCC 383

REASONS FOR JUDGMENT

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Catchwords: Caveat – Amendment of grounds of claim – s.90(3) Transfer of Land Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr K. Loxley	Hargraves Ambrose & Co
For the Defendants	No appearance

HIS HONOUR:

1The plaintiff, by writ in the proceeding, seeks specific performance of a contract for the sale of land. In the statement of claim, the plaintiff pleads in paragraph 9 that it exercised an option in respect of the land by serving on the first defendant an executed contract of sale on about 23 March 2012. In paragraph 10, the plaintiff pleads that an agreement was reached with the first defendant “in or around early April 2012” by which the first defendant agreed to sell and the plaintiff agreed to buy the land.

2Subsequently, the plaintiff lodged a caveat to protect its interest in respect of the land relying upon, as the grounds of claim, a “contract of sale dated 21/03/2012” between the plaintiff and the first defendant.

3By summons filed 24 September 2012, the plaintiff sought to amend the caveat to substitute, as the date of the agreement, “in or about early April 2012”. The summons was served on the first defendant and it has not appeared upon the return of the summons.

4Pursuant to section 90(3) of the Transfer of Land Act 1958, the Court has a wide power which in a series of cases has been interpreted as justifying amending a caveat in an appropriate case. These cases include, Midwarren Estates Pty Ltd v Retek [1975] VR 575 per Menhenitt J, S & D International Pty Ltd v Malhotra [2006] VSC 280 per Gillard J, Percy and Michelle Vale Pty Ltd v Gangemi & Anor [2010] VSC 530 per Macaulay J and Ren v Shi [2012] VSC 271 per McMillan J.

5In determining whether to exercise the power to amend, the Court has regard to the purpose and extent of the amendment and whether, for example, it may affect the rights of third parties. It is generally accepted that an amendment to the grounds of claim is an amendment which is more likely to be granted. In the present case, the amendment has limited effect. It will redefine the basis of the claim as a contract of sale entered into between the parties “in or about early April 2012”, rather than on 21 March 2012.

6I consider in the circumstances, and in the absence of the defendant making any submissions to the contrary, that it would be appropriate to grant the leave sought. Further, although the amendment is sought prior to trial, I consider that it should be granted at this stage in order that the proceeding can be determined on its merit and the parties are not distracted by a misdescription in the grounds of claim in the caveat.

7Accordingly, I propose to make the following orders:

a.The grounds of claim in caveat number AJ821408N lodged in the Office of Titles in relation to Certificate of Title Volume 9724 Folio 133 are amended to read, “Contract of sale dated in or about early April 2012 between the caveator and CR Weygood Pty Ltd (ACN 004 400 819)”.

b.Costs reserved.

c.The plaintiff must as soon as practicable serve a copy of this order on each of the defendants.

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Certificate

I certify that these 2 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 8 April 2013 and revised on 9 April 2013.

Dated:       9 April 2013

Philippa Gilkes

Associate to His Honour Judge Anderson