Wade, Peter v Reid, Geoffrey Robert and Reid, Alison
[2009] VCC 1268
•14 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
COMMERCIAL LIST
GENERAL DIVISION
Case No. CI-09-03079
| PETER WADE | Plaintiff |
| v | |
| GEOFFREY ROBERT REID | First-named Defendant |
| and | |
| ALISON MARGARET REID | Second-named Defendant |
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| JUDGE: | HIS HONOUR JUDGE GINNANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28-29 September 2009 |
| DATE OF JUDGMENT: | 14 October 2009 |
| CASE MAY BE CITED AS: | Wade, Peter v Reid, Geoffrey Robert & Reid, Alison Margaret |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1268 |
REASONS FOR JUDGMENT
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Catchwords: Sale of Land – Contract incorporating General Conditions from Table A of the Seventh Schedule to the Transfer of Land Act 1958- Whether agreement to extend settlement date - Notice of Rescission- Whether effective – Transfer of Land Act 1958, Seventh Schedule, Table A, General Conditions 5 and 6
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendants | C. Johnson | Mepstead Lawyers |
| HIS HONOUR: |
INTRODUCTION
1 In this matter, the question for determination is whether a notice of rescission of a contract for the purchase of a property by the plaintiff, Peter Wade, at 6 Douglas Parade, Yarra Junction (the property), served by the vendors of the property, the defendants Geoffrey Robert Reid and Alison Margaret Reid, on the purchaser on or about 28 April 2009 was valid so as to rescind the contract or whether it was invalid because there was an agreement or arrangement between the parties which was a bar to the service of such a notice at the time.
2 By writ issued on 6 July 2009 the plaintiff seeks orders that the contract is still in force, that he have a reasonable time to attend to settlement of the contract and ancillary relief.
3 For the reasons given below I have determined that the rescission notice was valid and that it has not been proved that there was an agreement or arrangement between the parties which was a bar to the service of such a notice at that time.
4 The plaintiff presented his own case. The defendants, who are husband and wife, were represented by Mr C. Johnson of counsel. The plaintiff gave evidence on his own behalf and the defendants and their solicitor Mr. Timothy Mepstead gave evidence on behalf of the defendants. An affidavit sworn by Mr Mepstead on 3 August 2009 and some other documents were received into evidence.
TERMS OF THE CONTRACT
5 The general conditions of Table A of the Transfer of Land Act 1958 applied to the contract. General Conditions 5 and 6 of Table A govern the rights of rescission. Clause 6 requires a notice of default to be served in effect providing 14 days in which to remedy the default.
6 The rescission notice dated 28 April 2008 gave the following particulars of default:
“You have failed to pay $2,958.33 due on 12 February 2009 pursuant to Special Condition 10 of the Contract, $7,027.02 due on 12 March 2009 as pursuant to Special Condition 11 of the Contract, $3,300.00 due on 12 March 2009 as pursuant to Special Condition 12 of the Contract and the balance of settlement monies of $355,000 due on 12 March 2009.”
7 The contract referred to was dated 12 November 2008 and signed by the plaintiff on or about 16 December 2008[1] and provided for the sale of the defendants’ property at 6 Douglas Parade, Yarra Junction to the plaintiff, for $375,000 including a deposit of $20,000. Special Conditions 10, 11 and 12 are important and I set them out:
[1] Affidavit of Timothy William Mepstead of 3 August 2009 paragraph 12
“10. The balance of purchase money shall be paid as follows: By constructive (sic) monthly payments until the final payment date when the balance owing and interest must be paid. Each payment must be applied first to any interest and then to reduce the balance owing. Interest is calculated and adjusted monthly. Details are as follows: Monthly payment of $2,958.33
Commencing on 12 December 2008 [in arrears]; Final payment is on 12 March 2009
Interest rate is 10% 11. The Purchaser shall pay the Vendor the sum of $3,647.12 on account of penalty interest incurred by the Vendor, in relation to the penalty interest incurred by the Vendor on their purchase of Yarra Junction, together with $240.00 removalist costs incurred by the Vendor and penalty interest on the rescinded Contract between the Vendor and Purchaser dated 29 February 2008 in the sum of $4,160.48 for the period of 15 September 2008 to 16 October 208 (sic) and interest at 10% from 17 October 2008 to 12 November 2008 in the sum of $2,626.54. A total of $10,674.14 such payment to be made on or before the settlement date.
12. The Purchaser shall at or prior to settlement pay the vendors legal costs of $3,300.00 in relation to the rescinded Contract between the Vendor and Purchaser dated 29 February 2008.”
8 The contract stated that the settlement date :
“Shall be the date upon which vacant possession of the Property and the Chattels shall be given by the Vendor to the Purchaser, namely upon acceptance of title and payment of the full purchase price interest and payments due to the Vendor as pursuant to Special Conditions 10, 11 and 12.”
9 The contract provided that the date for the payment of the balance would be “as set out in Special Conditions or 12 March 2009 or earlier by agreement”.
THE FIRST CONTRACT
10 As is apparent from the terms of special condition 11, there had been a previous contract of sale of the property made between the plaintiff and the defendants. It was made on or about 29 February 2008 with settlement due on 22 August 2008, which date was extended to 12 September 2008. This contract did not reach a settlement and was replaced by the contract dated 12 November 2008 under which the purchaser agreed to pay certain costs incurred by the vendors as a result of the first contract not proceeding.[2] The removalists were in the middle of moving the defendants to their new home, when the move was stopped because the plaintiff could not settle. The defendants incurred costs because of this including penalty interest under their contract to purchase a new property. The plaintiff agreed to pay those costs.
[2] Affidavit of Timothy William Mepstead 3 August 2009 paragraphs 3 -10
11 The failure to complete the first contract and the circumstances giving rise to this litigation, have been caused to a considerable degree by the inability of the plaintiff to obtain finance to settle the purchase of the property. The plaintiff has commenced the subdivision of the property. That subdivision is substantially completed, but the evidence suggests that until it is completed there are difficulties for the plaintiff in obtaining finance to complete the contract.
THE PLAINTIFF MOVES INTO THE PROPERTY
12 At a point after 12 November 2008 the defendants vacated the property and moved to their new home nearby. They gave the plaintiff a key to the property to enable him to obtain a valuation of it. Mr Reid’s evidence was that he had asked for the key back and when Mr Wade had refused he had changed the locks and otherwise had sought to prevent the plaintiff’s entry but had been unsuccessful. Mr Wade said that Mr Reid had asked him to stay in the house because of concerns about bushfires, but Mr Reid denied this and said that Mr Wade had never asked him if he could move into the house.
13 The plaintiff had works performed on the property, which were required to achieve subdivision and on his evidence he moved into the house in late January or early February 2009. The defendants were aware that the plaintiff had moved into the house. They had given him permission to move in his late father’s lounge suite but the evidence did not establish the extent of their knowledge of the subdivision works that the plaintiff arranged.
INTEREST PAYMENTS
14 The plaintiff paid the December interest payment due on 8 December 2008 by a cheque for $2,958.33.
15 On 15 December 2008, the plaintiff delivered a letter and cheque in the sum of $3,647.12 to the office of the defendants’ solicitor, Mr Timothy Mepstead at Yarra Junction. There is a dispute about how that payment should be allocated and I will return to that dispute later in these reasons. The letter stated:
“Please find enclosed cheque for $3647.12, representing the payment of penalty interest due on 12th December, as Geoff and Alison have requested that any payments due under the terms of our new contract for the purchase 6 Douglas Pde Yarra Junction be forwarded to them through your office.
As I understand it, the next payment due (unless settlement is arranged prior to that date) is the monthly interest instalment due on the 12th January 2009.
Thank you for your assistance in this matter thus far.”[3]
[3] Affidavit of Timothy William Mepstead sworn 3 August 2009 Exhibit TWM -7
16 Interest of $2,958.33 was payable on 12 January 2009. It was not paid on that date. This led on 23 January 2009 to the defendants’ solicitor serving a rescission notice on the plaintiff, but that rescission notice was not proceeded with because, on 4 February 2009, the outstanding interest for January was paid and the payment was accepted by the defendants.
17 The question of whether the next interest payment which was due on 12 February 2009 was paid is important as its alleged non-payment is relied on in the rescission notice dated 28 April 2009. I deal with that issue below.
MARCH-APRIL 2009 CORRESPONDENCE REGARDING INTEREST PAYMENTS
18 On 4 March 2009 Mr Mepstead wrote to the plaintiff’s solicitor, Mr Gary Burgess, stating that the plaintiff was “still in default by way of arrears on the last rescission notice” and had not paid the interest instalment due on 12 February 2009. Mr Mepstead stated that unless he received a response by 5pm on Friday 6 March 2009 he would seek instructions to rescind.
19 On 12 March 2009 Mr Burgess telephoned Mr Mepstead and requested an extension of six weeks for the plaintiff to settle.
20 Mr Mepstead replied by letter of 12 March 2009, which in material respects stated:
“We note you now seek an extension of six weeks.
Your client has the following outstanding:
1. Penalty Interest on the payment due 12 January 2009, which
was paid on 4 February 2009 at 16% (16 per cent);
2. Costs on Recession (sic) Notice of $440.00 on 23 January
2009;
3. Payment of $2,958.33 due 12 February 2009, together with
Penalty Interest at 16% (16 per cent).
Settlement is due today and Penalty Interest is applicable at 16%
(16 per cent).Once we receive your formal request we shall seek instructions but anticipate our client will require all arrears to be up to date.”
21 On 18 March 2009 Mr Mepstead wrote again to Mr Burgess in response to a letter of Mr Burgess’ dated 11 March 2009 which is not in evidence, but which apparently again sought a six week’s extension for settlement. The material parts of Mr Mepstead’s letter were:
“My clients will not consider any extension until the following
payments have been made:
1. Penalty Interest on the payment due 12 January 2009 to 4
February 2009 at 16%;
2. Costs on Notice of Rescission at $440.00;
3. $2,958.33 due 12 February 2009 together with Penalty Interest
at the rate of 16% from 12 February 2009 to date;
4. $2,958.33 interest due 12 March 2009.
Once payment is made, which we require strictly within 48 hours, our clients will consider their position as to any extension.”
THE APRIL 2009 CONVERSATIONS
22 The plaintiff said that in April 2009, on a day before April 24, Alison Reid phoned him in Sydney, where he was working, and asked him if he could tell them what was happening. He said that he told her he was doing everything as fast as he could, that he was talking to the Council and hoped to get feedback in 3-4 weeks.
23 On 24 April 2009, the plaintiff and the defendants spoke on the telephone and then the defendants went to Mr Mepstead’s office and later met with Mr Mepstead. Those conversations are critical to the resolution of this case and I will set out in detail the evidence concerning them.
24 The plaintiff said that either on 23 or 24 April 2009, he was in his car driving, when Mr Geoffrey Reid rang him on his mobile phone wanting to speak to him. The plaintiff said that Mr Reid reiterated his sympathy with the plaintiff’s position, but said that the defendants themselves were in difficulties, their son (who had advanced money to enable them to complete the purchase of their new home) had lost his work contract and that they needed to know where they were going. Mr Wade said that he told them he wanted to sort things out and that he was sympathetic to their position. He said that in the conversation there was no talk of the need for settlement.
25 According to Mr Wade, Mr Reid said that he was concerned about the interest payments and in response he assured Mr Reid that interest payments would be made. Mr Wade said that Mr Reid told him he and his wife were going away for a trip and he asked if Mr Wade could have something they could rely on by their return in two weeks. Mr Wade asked Mr Reid if he was sure he wanted to do that. Mr Wade said that at some point Mrs Reid joined in the telephone call, apparently from a second phone in the Reids’ house. Mr Wade said that Mr Reid then asked “Alison, do we want to give Mr Wade another two weeks to come up with something firm?” Mrs Reid told her husband that it was his decision whether to do that.
26 Under cross-examination, Mr Wade said that he talked to Mr Reid of the possibility of one to two months for settlement and that Mr Reid said that that was too long for something concrete to be developed and asked “could we not have something concrete in the next two weeks?”
27 Mr Wade said that he concluded the telephone conversation by saying, “Enjoy the trip” and that he would talk to them when they got back. He said the conversation lasted for about half an hour.
28 Mr and Mrs Reids’ version of the conversation was quite different. Mr Reid said that Mr Wade telephoned him and that he told him that he had two weeks to move out of the house, or pay the settlement sum or the property would be back on the market. He said it was a short conversation at the end of which he hung up.
29 Mrs Reid said that she heard her husband’s words during the conversation but did not participate in it. She heard her husband say, “We want money in a fortnight or the property is going back on the market”.
30 Mrs Reid said that after the telephone conversation she and her husband went to Mr Mepstead’s office and told his assistant of the conversation between Mr Reid and Mr Wade. Mr Mepstead was not in the office at the time. Mrs Reid also said that she thought that their meeting with Mr Mepstead was not until they returned from their holiday the following Thursday. In fact the meeting occurred on the same day 24 April 2009.
31 Mr Mepstead’s evidence was that on 24 April 2009 his secretary, Ms Kerry Barber, informed him that Mr and Mrs Reid had called into the Yarra Junction office at 10.15am and wanted to speak with him. Ms Barber’s note of her conversation with the Reids recorded that Mr Reid informed her that he had finally spoken to Mr Wade after trying to contact him for four weeks. Mr Wade had told him that the valuation of the property had still not been done. Ms Barber’s note recorded that Mr Reid was really angry with Mr Wade and had told him that he had two weeks from that day to get things organised or the property was going back on the market. Mr Reid wanted to speak to Mr Mepstead about whether to issue a further rescission notice. Ms Barber was not called as a witness but her file note was produced from Mr Mepstead’s file. I have treated the note as background to explain the context of the conversation which occurred later on 24 April 2009 between the Reids and Mr Mepstead, with which I deal in the next paragraph.
32 Mr Mepstead gave evidence that later on 24 April 2009 as a result of a message from Ms. Barber he spoke to both Mr and Mrs Reid on the telephone. They told him that they had enough of the plaintiff and they wanted a rescission notice issued. Mr Mepstead said he would send a notice on the following Monday. The Reids told him that the plaintiff had a key to the property and that he was “fibbing” to them all the time. They were now prepared to battle on regardless.
33 Mr Mepstead issued the rescission notice, which is the subject of this litigation, on the following Tuesday, 28 April 2009.
34 No interest payments have been made since. The plaintiff stated in final submissions that he would request a further two months in which to obtain the necessary finance to complete the contract.
35 The plaintiff accepted that the rescission notice had been served on him and that save in the case of the interest due on 12 February 2009, to which I will return below, he had not paid the amounts particularised in it. In the case of the interest due on 12 February 2009 the plaintiff said that the first time that it was mentioned as being overdue was when it was included in the rescission notice.
EVENTS AFTER 24 APRIL 2009
36 The plaintiff said that he was shocked to receive the rescission notice from Mr Burgess his solicitor, who in turn had received it from Mr Mepstead, that he spoke to Mr Burgess about the arrangement he had reached with the Reids and tried to speak with the Reids, but that they would not talk with him and told him to talk to their solicitor. Mr Reid agreed that Mr Wade had visited him and that he had declined to talk to him and said that he had called the police.
37 Mr Wade said that he thought that the rescission notice had been sent as a mistake and that the Reids’ solicitor had sent it without asking them. He said that over the next couple of days his solicitor, Mr Burgess, contacted Mr Mepstead but that Mr Mepstead was unwilling to discuss the notice
38 On 11 May 2009, the plaintiff lodged a caveat on the title of the property claiming an interest as purchaser of the land pursuant to the contract of sale dated 12 November 2008.
39 On 13 May 2009 Mr Mepstead spoke on the telephone with Mr Gary Burgess. He said that Mr Burgess told him that he had seen his client, ie. Mr Wade, a couple of days before and that he still did not have loan approval and had nothing to offer. He had left it with Mr. Wade to come back to him but he had not. Mr Mepstead told Mr Burgess that he would consider the contract at an end at the close of business that day, ie. 13 May 2009.
40 The plaintiff did not call Mr Burgess as a witness.
41 On 14 May 2009 Mr Mepstead wrote to Mr Burgess stating that:
“We refer to previous communications in this matter and note that
the Contract is now at an end.”[4][4] Affidavit of Timothy William Mepstead sworn 3 August 2009 exhibit TWM- 16
42 On 18 May 2009, Mr Burgess wrote to Mr Mepstead stating:
“I refer to your letter of 14 May 2009 and I advise that my client has instructed me that he does not accept that the matter is rescinded as he had an agreement with the vendors that they would give him further time to arrange outstanding matters related to this purchase and would not be issuing a rescission notice.”[5]
[5] Affidavit of Timothy William Mepstead sworn 3 August 2009 exhibit TWM- 17
43 Mr Mepstead received advice of the lodging of the caveat from the Land Titles Office and formed the opinion that the caveator did not have the interest claimed. On 25 May 2009, he applied on behalf of the defendants for the service of a notice under s.89A(1) of the Transfer of Land Act.
44 On 8 July 2009, Mr Mepstead received notice from the Department of Sustainability that this proceeding had been filed by the plaintiff, although the writ had not been served on his clients.
45 The defendants sought summary judgment, but an early hearing of the proceeding was granted.
PLAINTIFF’S ARGUMENTS
46 The plaintiff’s statement of claim alleged that the defendants had no right to issue the notice of rescission of 28 April 2009 as they had agreed to extend all terms of the contract, including the settlement date, to 18 May 2009 and, pursuant to that agreement, to grant an extension of time on the settlement.
47 The plaintiff asserts that the written contract had been varied by oral agreement to extend the settlement date.
48 The question of whether it was possible to vary a term of a contract for the sale of land orally was not addressed in submissions.[6] The point was not raised in defence. I therefore proceed for the purposes of this case on the basis that it is possible so to vary a contract for the sale of land at least to alter the settlement date.
[6] On this question see generally: Legione v Hateley (1983) 152 CLR 406, Tropical Traders Ltd v Goonan (1964) 111 CLR 41; Dowling v Rae (1927) 39 CLR 363; Tallerman & Co. Pty Ltd v Nathan’s Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93,122 and Voumard,The Sale of Land (6th Ed) paragraph 2070.
CONSIDERATION OF EVIDENCE
49 The plaintiff and the defendants gave conflicting accounts of the conversation of 24 April 2009. Each of the parties in oral evidence reiterated their versions of the conversations, including when cross-examined.
50 I have considered carefully the evidence, in particular the oral evidence, given by the three parties. Having done so I am not satisfied on the balance of probabilities that the agreement to extend the time for settlement alleged by the plaintiff was made. My reasons for this conclusion are as follows.
51 As at 23 or 24 April 2009 the evidence establishes that the defendants were very concerned about the position of their son, who had advanced them a substantial sum of money to settle the purchase of their new home. They obviously wanted to repay the loan or assist him financially. I consider it improbable that the defendants would have agreed, as the plaintiff contends, to extension of the settlement date to an unspecified date.
52 Second, the defendants’ conduct on 24 April 2009 after the conclusion of the conversation between Mr Reid and Mr Wade, consisting of going to Mr Mepstead’s office, speaking to him on the telephone and issuing instructions for a rescission notice is inconsistent with the suggestion that they had reached an agreement with Mr Wade to give him further time to settle. Rather it is consistent with the Reids’ account of the conversation. The rescission notice allowed 14 days for the rectification of the defaults.
53 It is of course possible that the Reids agreed to give Mr Wade the further time that he alleges and then changed their mind. Having heard the evidence, I do not consider that outcome of the conversations to be probable.
54 I have noted the contents of the letter of Mr Burgess of 18 May 2009. However that letter makes no reference to a period of two weeks as the agreed extension and in its terms does not set out the precise arrangement that the plaintiff says was entered into with the Reids.
55 The third matter of note is that the plaintiff’s statement of claim, which he issued personally, puts the alleged agreement with the Reids in different terms from those that the plaintiff alleged at the hearing. Paragraph 9 states:
“On or about the 24th April 2009 the Plaintiff met with the Defendants and informed them that there had been a delay to organizing settlement with the Plaintiff’s lender, and a request was made to the Defendants that settlement be delayed a further 2 weeks. The Defendants both stated to the Plaintiff in this meeting that it was agreed that they would provide the Plaintiff 2 weeks time to organize funds and that the Plaintiff and the Defendants both agreed that the Plaintiff would contact the Defendants by 8th May 2009 to inform them of the progress of settlement. The Defendants effectively gave the Plaintiff an extension of settlement of the terms of the contract until 8th May 2009.”
56 This paragraph, in my opinion, highlights a contradiction in the plaintiff’s case. In the plaintiff’s own pleading he moves from an allegation that there was an agreement to delay settlement for two weeks to an agreement to put off a decision as to when settlement would occur for two weeks. In a sense the rescission notice did give Mr Wade a further two weeks, in that it gave him two weeks to remedy the defaults, but I do not accept that there was an agreement that he should have two weeks to come back with a proposal for a settlement date.
57 I should add for the sake of completeness that Mr Wade submitted that the reference in paragraph 9 of the statement of claim to a meeting was to the telephone conversation on 24 April 2009. Whether or not that be the case, I am not satisfied that there was an agreement that settlement be postponed until 8 May 2009 or any other date.
58 The plaintiff raised a number of points in final submissions. He said that he relied on what the Reids told him rather than obtaining some more formal extension of the contract because they were sympathetic to him. However the Reids’ evidence is that the position of their son required them to take the action that they did.
59 It is true that the Reids were unable to remember the details of a number of conversations and the plaintiff’s memory of events was sharper and more detailed. The Reids conceded that their memory was not good on a lot of things. They are senior citizens being both aged in their early eighties. However, the conversation of 24 April was the critical event. Mr Reid said that he could remember this key conversation very well - he could not forget it. The defendants’ recollection seemed to me to be sharp in respect of the substance of the conversation and their conduct in approaching their solicitor immediately after the conversation confirms the accuracy of their recollection. It is not surprising that senior citizens, who may not remember the details of all conversations in which they participate, would have a sharp recollection of a decision taken by them to take decisive steps after a period of delay and of the fact that one of them had told the other party of their decision in pithy terms.
60 The plaintiff also pointed to discrepancies in the defendants’ evidence. For instance, Mr Mepstead’s note of his conversation with Mr Reid suggested that Mr Reid had told him that he had tried to call the plaintiff three times, whereas Mr Reid denied that that had occurred. Again, while I accept that the defendants’ recollection of a number of events was vague, for the reasons I have attempted to give, I consider their evidence was reliable on the critical matter.
61 The plaintiff pointed to his attempts to protest to the Reids about the rescission notice and his visit to their property, but again that does not address the key issue which is - was there an agreement to alter the settlement date or not?
62 The plaintiff was critical of the conduct of the defendants’ solicitor in a number of respects, such as the preparation of the Reids’ affidavit, prepared in connection with the summary judgment application, without making reference to the file notes which were tendered at the trial and also suggestied that the rescission notice had been issued without the defendants’ instructions. I do not consider that these criticisms are established. It appears to me that the defendants’ solicitor acted to protect his clients’ interests. I accept the defendants’ evidence that they instructed him to issue the rescission notice.
63 The plaintiff described the terms of Mr Mepstead’s letter of offer of 18 March 2009 concerning the extension of the settlement date as unconscionable because it did not contain a guarantee to extend time if the terms of the letter were met. This argument does not go to the real issue in the case, but in any event I do not consider the terms contained in the letter to be unconscionable in any of the meanings of that word. It contained an attempt to obtain rectification of defaults in the performance of the contract. I see nothing unusual in postponing consideration of the extension of the contract until defaults by the purchaser have been remedied.
64 The plaintiff pointed to the difficult position which he was in, in that he had invested his savings in the property, including $66,400 in subdivision expenses, and would lose those savings if it were held that the contract was no longer in existence. He also pointed to his difficult circumstances at relevant times having experienced the death of his father on 7 January 2009 and having cared for his father in the last months of his life. The bushfires of 7 February 2009 had also made it difficult for him to complete sub-division works. He had applied for planning permission to subdivide the property into three lots in August or September 2008. He had obtained a planning permit in December 2008.
65 My reasons for judgment are not intended to treat lightly the challenges that the plaintiff confronted. It would be inappropriate for me to comment on whether or not the defendants should have served the rescission notice at the time that they did. However the defendants had their own difficulties to face, not least the concern for their son’s position.
66 The key question is whether I am satisfied on the balance of probabilities that the settlement date was extended. Having heard the witnesses and for the reasons I have given above, I am not.
OTHER MATTERS
67 As stated above the plaintiff presented his own case. I have considered whether the plaintiff might have other causes of action, in particular whether he could make out a claim that he is entitled to relief because the defendants will be unjustly enriched as a result of the rescission of the contract, which will leave them with the property with an enhanced value as a result of the subdivision works, which were said to be 80 per cent complete, and the obtaining of a planning permit for the subdivision.[7] There was some evidence that there may be another ready buyer for the property. No claim of unjust enrichment was pleaded or made by the plaintiff. On the evidence before me I doubt that such a claim would succeed. First the evidence does not establish what the value of the property now is nor how much more expenditure will be required to complete the subdivision. Second I do not consider that nay enrichment that may occur would be regarded as unjust within legal or equitable principle. The defendants have enforced their rights under the contract. On the evidence, all that could be said about the terms on which the plaintiff commenced carrying out subdivision works was that the plaintiff took his own chances that he would be able to settle as required by the contract. Some of the evidence suggested that the plaintiff needed to complete the subdivision to obtain the finance. In any event at the time of the trial the plaintiff was still indicating that he needed further time to obtain finance.
[7] See generally Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221,256 as to the elements of unjust enrichment.
THE ATTRIBUTION OF THE PAYMENT OF $3,647.12 OF DECEMBER 2008
68 The plaintiff raised a further issue which really sought to attack the terms of the rescission notice by arguing that the interest payment of $2,958.33 due on 12 February 2009 had actually been paid. The plaintiff’s argument was that he had unwittingly paid that sum on 12 or 15 December 2008, as a part of the payment of $3,647.12 made at that time in respect of penalty interest, and that the defendants had later accepted part of that sum as a monthly payment of interest. He said that he had sorted this out directly with the defendants who accepted that the $3,647.12 would be paid at settlement.
69 I am not persuaded that that is the case. I accept that the plaintiff may have, in hindsight, considered it unnecessary to have paid the penalty interest in December 2008 as it may not have been due under the contract until the settlement date. But I do not accept that there was any agreement to attribute part of the sum of $3,647.12 to the February interest payment. Indeed, such a suggestion was not made in any written correspondence. Even in the last letter from Mr Burgess of 18 May 2009, which asserted that an agreement had been made to extend settlement, there is no suggestion that there had been any agreement to attribute the payment of 12 or 15 December 2008 to the February interest payment.
70 In any event the position appears to be that a notice of rescission remains valid notwithstanding that in addition to alleging a default it alleges something that is not a default.[8]
[8] Legione v Hateley (1983) 152 CLR 406 and Burke and Riversdale Road Pty Ltd v Gemini Investments Pty Ltd [2003] VSC 33 [16]
CONCLUSION
71 In my opinion, the plaintiff has not established his claim and his action must be dismissed with judgment for the defendants.
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