Transformer Development Group Pty Ltd v Tait Street Investments Pty Ltd
[2023] VCC 878
•1 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne commercial DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-22-04584
| TRANSFORMER DEVELOPMENT GROUP PTY LTD (ACN 632 055 988) | Plaintiff |
| v | |
| TAIT STREET INVESTMENTS PTY LTD (ACN 617 871 879) | Defendant |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 May 2023 | |
DATE OF RULING: | 1 June 2023 | |
CASE MAY BE CITED AS: | Transformer Development Group Pty Ltd v Tait Street Investments Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 878 | |
REASONS FOR RULING
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Subject: SALE OF OFF-THE-PLAN LOT
Catchwords: CONTRACT – contract construction – whether contract conflicts with Sale of Land Act 1962 – sunset clause – rescission pursuant to contract – whether rescission valid
STATUTE – legislative construction – meaning of sunset clause within Sale of Land Act 1962 – effect of sections 10A – E of the Sale of Land Act 1962 (Vic)
Legislation Cited: Interpretation of Legislation Act 1984; Property Law Act 1958; Sale of Land Act 1962; Subdivision Act 1988
Cases Cited:Byrnes v Kendle (2011) 243 CLR 253; Clifford & Anor v Solid Investments Australia Pty Ltd [2009] VSC 223; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; Everest Project Developments Pty Ltd v Mendoza & Ors [2008] VSC 366; GLP Batesford Holdings Pty Ltd v 68 Bridge Road Land Pty Ltd [2022] VSC 614; International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Roads Corporation v Jolimont Heights Pty Ltd and Ors [2002] VSC 500; SZTAL v Minister for Immigration (2017) 262 CLR 362; Taylor v Owners – Strata Plan 11564 (2014) 253 CLR 531
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P H Barton | MLG Lawyers |
| For the Defendant | Mr T P Warner | HWL Ebsworth |
HIS HONOUR:
Introduction
1This is an application by the plaintiff (“TDG”) by summons dated 28 October 2022 seeking answers to various questions posed under section 49 of the Property Law Act 1958 (Vic).
2The dispute arose when TDG as the purchaser entered into 18 contracts of sale with the defendant (“Tait Street”) as the vendor of land in proposed Plan of Subdivision PS842977C, Bonshaw in the State of Victoria (“the Land”). Each contract was relevantly in identical terms. In summary, each contract of sale provided that the contract was subject to, and conditional upon, the vendor obtaining approval from any necessary authority to construct services such as electricity, gas, water, and sewerage to each lot within the subdivision. The approval was to be on terms acceptable to the vendor and to be provided within 24 months from the date of sale. The vendor was unable to obtain the necessary approvals on acceptable terms and suggested to the purchaser that the contracts be terminated by agreement and that the vendor return the deposit monies. The purchaser contended that the contractual terms relied upon by the vendor for this proposal were void because they were inconsistent with provisions of the Sale of Land Act 1962 (Vic) (“the SLA”).
Background
3Counsel for the plaintiff, Mr Barton, explained the background of the transaction in some detail. This included a careful explanation of the contract of sale (including the special conditions therein), the vendor’s statement (which included details of the proposed plan of subdivision), the planning permit, the Ballarat Planning Scheme and the Ballarat West Precinct Structure Plan. While these materials were helpful in obtaining an appreciation of the broader context of the dispute, I do not need to refer in detail to all of these documents in order to resolve the current dispute between the parties.
4The vendor’s statement noted that there was no electricity, gas, water, sewerage or telephone service connected to the land.
5The planning certificate advised that the land was within, or covered by, the Ballarat Planning Scheme. It was zoned part General Residential Zone - Schedule 1 and part Urban Growth Zone - Schedule 2. All the lots in the proposed plan of subdivision were to have potable water, electricity, reticulated sewerage, drainage, gas and telephone services.
6Under the planning permit, the conditions affecting the proposed development included the provision of such services in consultation with the responsible authorities.
7There were a number of important provisions in the contracts of sale.
8Special Condition 1.1 (Definitions) contained definitions as follows:
“ ‘Authority’ means any federal, state or local government, semi-government, municipal, statutory or other authority or body charged with the administration of the Law;
‘Services’ means all water, sewerage, drainage, gas, electricity, telecommunications or other installations, services and utilities at the Property;”
9Special Condition 5 in each of the contracts was in the following terms:
“5. Services
5.1 Purchaser Acknowledgement
The Purchaser acknowledges that the Property is sold subject to the Services. To the extent permitted by law, the Purchaser may not make any Claim, nor require the Vendor to take or refrain from taking any action in relation to:
(a) the nature, location, availability or non-availability of any Services;
…
5.2 Subject to Servicing
(a) The Purchaser acknowledges that this contract is subject to and conditional upon the Vendor obtaining approval from any necessary Authority enabling construction of services to the land in the Plan of Subdivision:
(i)on terms acceptable to the Vendor in its absolute discretion; and
(ii)by the date which is 24 months from the Day of Sale (Servicing Approval Date).
(b) If approval for construction of services is not obtained in accordance with Special Condition 5.2(a) by the Servicing Approval Date on terms satisfactory to the Vendor, the Vendor will have the right to rescind this Contract by giving written notice to the Purchaser to that effect in writing, in which case the Deposit will be refunded to the Purchaser and the parties have no other rights whatsoever in respect of this Contract.
5.3 No Claims
The Purchaser may not Object in respect of any matters referred to in this Special Condition 5.”
10The Contracts also contain Special Condition 11, which states:
“11.1 This Contract is subject to and conditional upon the Plan of Subdivision being registered by the Registrar of Titles. If the Plan of Subdivision is not registered by the Registration Date, the Purchaser may rescind this Contract by giving written notice to the Vendor before the Plan of Subdivision is so registered and the Vendor may rescind this Contract in accordance with this Special Condition.
11.2 Before rescinding this Contract, the Vendor must give the Purchaser 28 days’ written notice (‘notice period’), setting out:
(a) the reason why the Vendor is proposing to rescind this Contract;
(b) the reason for the delay in the registration of the Plan of Subdivision; and
(c) that the Purchaser is not obliged to consent to the proposed rescission.
11.3 For the purpose of Special Conditions 11.1 and 11.2, the Purchaser will be deemed to have consented to the proposed rescission if no objection is received by the Vendor on or before the end of the notice period.
11.4 New section 10F of the Act
(a) This Special Condition 11.4 only applies if section 10F of the Act is in effect on or before the Day of Sale.
(b) For the purposes of section 10F of the Sale of Land Act, if the Vendor wishes to rescind this Contract, the Purchaser acknowledges that:
(i) the Vendor is required to give notice of a proposed rescission of this Contract under Special Conditions 11.1 and 11.2; and
(ii) the Purchaser has the right to consent to the proposed rescission but is not obliged to consent; and
(iii) the Vendor has the right to apply to the Supreme Court for an order permitting the Vendor to rescind this Contract; and
(iv)the Supreme Court may make an order permitting the rescission of this Contract if satisfied that making the order is just and equitable in all the circumstances.”
11Special Condition 11.5 then provides that:
“The Vendor shall do all acts matters and things and execute all documents as may be reasonably necessary to cause the Plan of Subdivision to be registered by the Registrar of Titles. The Vendor reserves the right to make any alteration to the Plan of Subdivision which may be required by the Registrar of Titles or otherwise necessary in the reasonable opinion of the Vendor.”
12Finally, the contracts also include a Special Condition 40.4 in the following terms:
“Each party must do anything (including execute any document) to give effect to this Contract and to the transactions contemplated by it, and must ensure that its employees and agents do anything (including execute any document) that the other party may reasonably require to give full effect to this Contract.”
Parties’ positions
13In preparation for this hearing, the parties agreed at a pre-trial hearing before Judicial Registrar Bennett that this hearing would proceed as a purely legal dispute and that there would be no contest on the facts.
14The only fact material to the hearing before me was that Tait Street as the vendor was unable to reach agreement with the responsible authorities about an economic way in which to construct the various services on the land. As a result, Tait Street did not proceed with the development and sought to rescind the contract of sale and return the deposit monies to TDG in accordance with Special Condition 5.2 of the contract.
15The vendor’s solicitors advised the purchaser’s solicitors by letter dated 1 August 2022 in the following terms:
“We refer to the Contracts of Sale for the above properties. As you are aware, under Special Condition 5.2, the Contracts are subject to and conditional upon our client obtaining approvals from all required authorities enabling construction of services to the land in Stage 8 on terms acceptable to the Vendor in its absolute discretion within 24 months of the Day of Sale (30 October 2020 for Lots 801 to 807 and 10 November 2020 for Lots 808 to 818).
Our client has been engaged in ongoing and continued discussions with the relevant authorities to obtain approval to construct services to enable completion of Stage 8 as per the Plan of Subdivision. Our client’s original intention was to provide servicing via construction of infrastructure within the Florian project and at the time of entering into the Contracts, the relevant authorities were supportive of this.
However, the authorities have now indicated that they will not approve this approach and instead, require a far more expensive and time consuming solution which is unacceptable to our client. Our client has tried to renegotiate this position with the authorities but they have confirmed there is no scope for change in their approach.
As such, it is clear that our client will not obtain acceptable approvals by 30 October 2022 (or 10 November 2022 where applicable), being the cut off under Special Condition 5.2. Given this, our client proposes that the parties agree to terminate the Contracts now and refund the deposits to your client (instead of waiting another 3 months before terminating the Contracts).
Please seek your client’s instructions and confirm this approach is acceptable, in which case the parties can rely on this exchange of solicitors’ correspondence as confirmation of the agreement to cancel the Contracts.”
16By letter dated 26 August 2022 the purchaser’s solicitors responded as follows:
“The Contracts of sale for Lots 801 to 807 were executed on 30 October 2020 and for Lots 808 to 818 on 10 November 2020 (“Contracts”). In your letter you state that it is unlikely that your client will be able to obtain approvals to provide servicing to the Lots subject to the Contracts and seek to terminate the Contracts by agreement. We note that your client intends to rely on Special Condition 5.2 which we have reproduced below and is identical across all Contracts.
…
We note that the Act applies to the Contracts. Under s10C of the Act, a provision of a residential off-the-plan contract has no effect to the extent that it is inconsistent with sections 10A, 10B and 10E. Under s10B of the Act, a vendor must not rescind a residential off-the-plan contract under a sunset clause in that contract except as provided for in division one of the Act.
We assert that Special Condition 5.2 is a sunset clause for the purposes of the Act and further assert that it purports your client to rescind the Contracts under a sunset clause in a manner that is not in accordance with division one of the Act. Therefore, in accordance with s10C of the Act, Special Condition 5.2 has no effect and cannot be relied upon by your client to rescind the Contracts.
The Contracts define services to mean all water, sewerage, drainage, gas, electricity, telecommunications or other installations, services and utilities at the property.
The services that Special Condition 5.2 refers to are services that are necessary to be completed to ensure the Plan of Subdivision is registered by the Registrar of Titles. Therefore, should your client seek to rescind the Contracts on the basis that it is unable to obtain approvals to provide servicing to the Lots subject to the Contracts, then it would need to rescind the Contracts in accordance with Special Condition 11 of the Contracts. The applicable dates under Special Condition 11 would be 30 October 2023 for Lots 801 to 807 and 10 November 2023 for Lots 2023 (sic).
For the avoidance of any doubt, our client will not be agreeing to terminate the Contracts. Our client is determined and able to fulfil its obligations under the Contracts and desires that your client will also fulfil its obligations as soon as practicable.”
17In summary, the plaintiff (as purchaser) contends that the defendant (as vendor) is unable to rely upon Special Condition 5.2, because it is void and/or of no effect, either:
(a) due to sections 10C and/or 14 of the SLA; and/or
(b) because it is inconsistent with Special Conditions 11.4 and/or 40.4.
18The defendant maintains Special Condition 5.2 is valid and has been regularly invoked.
Plaintiff’s position
19TDG noted that the SubdivisionAct 1988 (Vic) (“the SA”) regulated the subdivision of land in Victoria. It referred to the procedure for certification and registration of plans of subdivision set out in section 5 of the SA. The plaintiff also referred to the role of council in certifying plans of subdivision and the need for referral authorities to give their consent.[1] The SA addressed what referral authorities had to do and the need for statements of compliance.[2] The Registrar of Titles can register a plan if relevantly:
(a) it appears to have been certified by the Council and the certification remains valid; and
(b) the applicant provides a statement of compliance with the plan, or an acquiring authority, Minister, government department, public authority or Council submits a statement that the plan is exempt from Part 3.[3]
[1] Subdivision Act 1988 (Vic), s 6
[2] Subdivision Act 1988 (Vic), s 21
[3] Subdivision Act 1988 (Vic), s 22(1)
20The registration of a plan of subdivision takes effect when the Registrar of Titles records that the plan has been registered.[4]
[4] Subdivision Act 1988 (Vic), s 24(1)
21TDG contended that under certain conditions, the SLA facilitates a sale by an off-the-plan contract where the plan has not been registered under section 22 of the SA. Section 9AA of the SLA permits such a contract if the deposit is dealt with in a particular way. Under section 9AE(2) of the SLA, if the plan of subdivision is not registered before the end of the period specified in the contract, the purchaser can rescind the contract before registration. The ability of a vendor to rescind under a sunset clause, being a provision of a residential off-the-plan contract which provides for the contract to be rescinded if the relevant plan of subdivision is not registered by the sunset date, is restricted by sections 10A – 10E inclusive of the SLA.
22TDG contended that the following sections of the SLA were relevant:
“10A Residential off-the-plan contracts and sunset clauses
If a sunset clause in a residential off-the-plan contract purports to automatically rescind the contract on the part of the vendor, the sunset clause is taken to permit the contract to be rescinded on the part of the vendor on or after the sunset date, in accordance with this Division.
10B Power of vendor to rescind a residential off-the-plan contract under sunset clause
(1) A vendor must not rescind a residential off-the-plan contract under a sunset clause in that contract except as provided for in this Division.
(2) Subject to subsection (3), a vendor may rescind a residential off-the-plan contract under a sunset clause if-
(a) the relevant plan of subdivision has not been registered by the sunset date;
…
(3) Before rescinding a residential off-the-plan contract under a sunset clause, the vendor must obtain the written consent of each purchaser to the rescission after giving each purchaser, at least 28 days before the proposed rescission, written notice setting out—
(a) the reason why the vendor is proposing to rescind the contract; and
(b) the reason for the delay in the registration of the plan of subdivision ...; and
(c) that the purchaser is not obliged to consent to the proposed rescission.
10C Inconsistent provision of no effect
A provision of a residential off-the-plan contract has no effect to the extent that it is inconsistent with sections 10A, 10B and 10E.
10D Purported rescission a breach of a residential off-the-plan contract
The purported rescission of a residential off-the-plan contract in contravention of this Division is taken to be a breach of that contract.
10E Vendor may obtain order of Supreme Court to rescind
(1) A vendor under a residential off-the-plan contract that contains a sunset clause may apply to the Supreme Court for an order permitting the vendor to rescind the contract under the sunset clause.
(2) On the application of a vendor under subsection (1), the Supreme Court may make an order permitting the vendor to rescind the residential off-the-plan contract if the Court is satisfied that making the order is just and equitable in all the circumstances.
(3) In determining whether to make an order under subsection (2), the Supreme Court must have regard to-
(a) the terms of the residential off-the-plan contract; and
(b) whether the vendor has acted unreasonably or in bad faith; and
(c) the reason for the delay in registering the relevant plan of subdivision or in an occupancy permit being issued; and
(d) the likely date on which the relevant plan of subdivision will be registered or the occupancy permit will be issued; and
(e) whether the lot that is the subject of the residential off-the-plan contract has increased in value; and
(f) the effect of the rescission on each purchaser; and
(g) any other matter that the Court considers to be relevant; and
(h) any other prescribed matter.
(4) If the Supreme Court makes an order under subsection (2), the Court may make any other order it considers just and equitable in all the circumstances, including an order for reasonable compensation of the purchaser.
(5) The vendor is liable to pay the costs of a purchaser in relation to the proceeding for an order under this section unless the vendor satisfies the Supreme Court that the purchaser unreasonably withheld consent to the rescission of the residential off-the-plan contract under the sunset clause.”
23TDG referred to a number of authorities dealing with the SLA[5] and contended that the legislation was designed to protect those members of the public who purchase lots in unregistered plans of subdivision. TDG contended that Special Condition 5.2 was void because it was inconsistent with sections 10B and 10E of the SLA and also infringed section 14 of the SLA.
[5]Roads Corporation v Jolimont Heights Pty Ltd and Ors [2002] VSC 500; Everest Project Developments Pty Ltd v Mendoza & Ors [2008] VSC 366; Clifford & Anor v Solid Investments Australia Pty Ltd [2009] VSC 223
24First, TDG argued that it was implied from the fact that the SLA allows a sale, provided the deposit is dealt with in the manner described in section 9AA, that it is mandatory that the contract towards which the deposit is payable is completed. In other words, it is inherent in the payment of the deposit that the contract is completed. Special Condition 5 purports to allow a vendor to hold the deposit and then terminate the contract prior to completion.
25Secondly, TDG submitted that Special Condition 5 is inconsistent with sections 10B and 10E. Those provisions established a scheme whereby a vendor could rescind a contract under a sunset clause. Special Condition 5 had the effect of shortening the sunset approval date by a year but without requiring the purchaser to consent or enabling the purchaser to seek compensation. The procedure effectively side-stepped the scheme for rescission established by sections 10B and 10E of the SLA.
26Finally, TDG argued that Special Condition 5 was inconsistent with Special Condition 11.5 which required the vendor to do all acts, matters and things reasonably necessary to cause the planned subdivision to be registered.
Defendant’s position
27The vendor’s submissions included statements of principle about the construction of legislation and contracts. In applying them, the essence of the vendor’s position was that the Special Condition 5.2 should take effect according to its terms. The vendor argued that, properly construed, there was no inconsistency between Special Condition 5.2 and the various provisions of the SLA which TDG relied upon or between Special Condition 5.2 and other provisions of the contract.
Analysis
28An important aspect of this case is the construction of the relevant legislation and the interpretation of the contract between the parties.
29It is clear from the case law that the task of statutory construction begins and finishes with the words of the legislation construed in context.[6] Sometimes the choice is between the ordinary or grammatical reading of a word and one which cannot be so characterised.[7] On other occasions, there might be a range of potential meanings none of which is wholly ungrammatical or unnatural.[8] Where this occurs, the court should have regard to how well the various alternative constructions satisfy the statutory objects or policy underlying the legislation.[9]
[6] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at [69]
[7] SZTAL v Minister for Immigration (2017) 262 CLR 362, at [38]
[8] Taylor v Owners – Strata Plan 11564 (2014) 253 CLR 531, at [66]
[9] Ibid; see also Interpretation of Legislation Act 1984 (Vic), s 35(a)
30Over the last 15 years or thereabouts, the High Court has given the profession some guidelines in the principles to apply when interpreting contracts.[10] The aim is to ascertain the meaning of the parties’ words to a reasonable bystander who had the same background knowledge as the parties at the time of making the agreement. The critical part of the document is to be read both in its immediate context and in the broader context of the whole document. Relevant to this is the contractual purpose of the document, something which is gleaned or derived from the language and circumstance addressed by the contract, the genesis, the background and context of the contract. Where the language of the contract is ambiguous the court can have regard to extraneous materials to ascertain the relevant surrounding circumstances.[11]
[10]See, for example, International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151; Byrnes v Kendle (2011) 243 CLR 253; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
[11] J D Heydon, Heydon on Contract, (Thomson Reuters, 2019) paragraph 8.20
31Part 1 Division 1 of the SLA deals with the general provisions relating to the sale and subdivision of land.
32The contracts in question here are residential off-the-plan contracts for the purposes of 10C of the SLA. TDG contends in its originating motion that Special Condition 5 is of no effect due to its inconsistency with section 10B and/or section 10E of the SLA.
33Section 10B provides that a vendor must not rescind a residential off-the-plan contract under a sunset clause (as defined) in that contract except as provided for in Division 1 Part 1 of the SLA.
34Section 10E enables a vendor to apply to the Supreme Court for an order permitting the vendor to rescind a contract under a sunset clause. Section 14 of the SLA is a catch-all provision which notes that any agreement under which a person purports to waive any right which the person may have under the SLA to avoid a contract is itself void.
35In my opinion, the defendant’s construction of the legislation and contract of sale represents the better view. I so find for a number of reasons.
36First, Special Condition 5.2 is not a sunset clause within the definition in the SLA.
37Section 2 of the SLA defines “sunset clause” as follows:
“a provision of a residential off-the-plan contract that provides for the contract to be rescinded if-
(a) the relevant plan of subdivision in respect of the lot has not been registered by the sunset date; or
(b) an occupancy permit has not been issued in respect of the lot by the sunset date”
38Similarly, “sunset date” is defined as being:
“a date that is-
(a) specified in a residential off-the-plan contract as the latest by which the relevant plan of subdivision must be registered or the occupancy permit must be issued; or
(b) an extension of the date referred to in paragraph (a) that is determined in accordance with the terms of the contract”
39I consider that the definitions in the SLA are clear in their terms. A sunset clause is a provision in a residential off-the-plan contract which provides for the contract to be rescinded if the plan of subdivision has not been registered by the sunset date – that is, the date specified in the residential off-the-plan contract as the latest date by which the plan of subdivision must be registered.
40Special Condition 5.2 creates an avenue whereby if, by a particular date, the vendor does not obtain approval from any necessary authorities on acceptable terms to enable the construction of services to the land in the proposed subdivision, the vendor is entitled to rescind the contract. The vendor must give the purchaser written notice and return the deposit monies. Special Condition 5.2 in its terms relates to approvals obtained from authorities, not a failure to register plans of subdivision by a particular date. The subject matters of Special Condition 5.2 and the definition of “sunset clause” are different. As a result of the different subject matter, I see no inconsistency between Special Condition 5.2 and sections 10B or 10E of the SLA. Section 10B applies where the vendor seeks to rescind the contract under a sunset clause. Special Condition 5.2 does not do that and hence, sections 10B - 10E are simply irrelevant and inapplicable to the situation before me.
41The thrust of TDG’s argument is that a vendor can only rescind a residential off-the-plan contract if either the purchaser agrees or the Supreme Court approves. TDG argued that the vendor was bound by such a regime. To the extent that Special Condition 5.2 permitted the vendor to rescind the contract without obtaining the purchaser’s assent or an order from the Supreme Court, the clause was said to be inconsistent with the provisions of the SLA. The inconsistency was said to arise, by analogy from what Riordan J said in GLP Batesford Holdings Pty Ltd v 68 Bridge Road Land Pty Ltd,[12] where he commented that a provision in a contract contravened the Act if it came into conflict with, or acted contrary to the Act. It did not need to be a literal conflict between the contractual provision and the statutory provision. It was sufficient to have a conflict between the contractual provision or its operation and the purpose or policy of the statute.
[12] [2022] VSC 614
42As noted previously, the terms of the SLA and the contractual provision related to different topics and therefore, were not inconsistent.
43Secondly, Special Condition 5.2 does not clash with Special Condition 11 because the latter deals with the failure to register the plan of subdivision, not a problem with obtaining necessary approvals on acceptable terms.
44Thirdly, the court should generally seek to give effect to each word and clause in a contract. The presumption is that no provision should be assumed to be redundant or unnecessary.[13] This means that the court should seek to give effect to Special Condition 5.2 in accordance with its terms.
[13]See J D Heydon, Heydon on Contact, (Thomson Reuters, 2019) paragraph 8.60 and the cases cited therein
45Further, if there is potential inconsistency (which I do not find in this case), the court should attempt to reconcile the provisions in question.
46Next, to the extent that one has regard to section 35 of the Interpretation of Legislation Act 1984 (Vic) and such extraneous materials as the Explanatory Memorandum and Second Reading speech for the SLA legislation, the latter confirms that:
(a) the amendments caused by the introduction of sections 10A – E to the SLA were intended to restrict the vendor’s ability to rescind an off-the-plan sale of land under a sunset clause. The limitation was clearly formulated and confined to specific circumstances.
(b) the new sections 10A – E were designed to regulate and prevent the misuse of sunset clauses.
Hence, the facts here are materially different from the mischief which the legislation was intended to remedy.
47Finally, there is no inconsistency between Special Conditions 5.2 and 11.5. The latter requires the vendor to act in a particular way but it cannot be properly construed as requiring the vendor to make an agreement with the authorities for the construction of services on terms which are unacceptable to the vendor. TDG says that, if the terms proposed by the authority are unacceptable, the vendor must follow the procedure set out in the SLA whereby it notifies the purchaser of its desire to rescind the contract of sale and, if need be, applies for an order to this effect from the Victorian Supreme Court. Such an approach is not justified by the legislation. It imposes obligations upon a vendor which are not called for by the SLA. Because they apply to different scenarios, Special Condition 5.2 and 11.5 are able to co-exist without conflict.
48The same situation applies with Special Condition 40.4. This is an exhortation in general terms that each of the vendor and purchaser do everything to give effect to the contract (and ensure its employees and agents do likewise). This does not cut across the vendor’s rights in Special Condition 5.2. Even if there were some conflict (which I reject) I consider that the more specific terms of Special Condition 5.2 should override or take precedence over the more general provision of Special Condition 40.4.
Conclusion
49Subject to hearing the parties about the form of final orders and costs, for the reasons set out, I propose to order that the plaintiff’s application be dismissed with costs.
50I direct the parties to confer about the form of final orders and costs in an effort to agree upon orders giving effect to this judgment. If they cannot agree, then by 4.00pm on 5 June 2023, each party is to file with my chambers and serve a written submission setting out the orders sought and the reasons therefor. The submissions are not to exceed three A4 pages, a minimum 12 point typeface, and 40mm margins on both sides of the page. Unless I consider it desirable or the parties require it, I propose to determine the question of final orders and costs on the papers without an oral hearing.
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