JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2019
DATE OF JUDGMENT:	11 September 2019
CASE MAY BE CITED AS:	Wollert Epping Developments Pty Ltd v Batten
MEDIUM NEUTRAL CITATION:	[2019] VSC 618

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PROPERTY LAW – Sale of land – Application under s 49(1) Property Law Act 1958 – Whether vendors in breach of warranties that they are in possession of the land and whether at settlement will be the holder of an unencumbered estate in fee simple in the land – Whether questions hypothetical or pointless – Interaction between warranties and identity clause – Difference between description of land in Certificate of Title and occupation of land – Encroachment by boundary fence – Koadlow v Bolland (1997) 1 VR 632; Fullers’ Theatres Ltd v Musgrove (1923) 31 CLR 524; Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1; Flight v Booth (1834) 1 Bing (NC) 370; 131 ER 1160.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Rollnik	HWL Ebsworth Lawyers
For the Defendant	Mr A Morrison	Fernando Zito & Associates

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

The facts............................................................................................................................................... 1

The Contract........................................................................................................................................ 1

The questions...................................................................................................................................... 1

Submissions........................................................................................................................................ 1

Is declaratory relief available in the form sought?....................................................................... 1

Submissions................................................................................................................................... 1
Consideration................................................................................................................................ 1

What interest did the Vendors agree to sell?................................................................................. 1

Submissions................................................................................................................................... 1
Consideration................................................................................................................................ 1

What is the effect of the identity clause (GC 3)?........................................................................... 1

Submissions................................................................................................................................... 1
Consideration................................................................................................................................ 1

What effect does the s 27 notice have on the Purchaser’s rights?.............................................. 1

Conclusion........................................................................................................................................... 1

HIS HONOUR:

Introduction

The plaintiff commenced this proceeding by originating motion seeking answers to several questions pursuant to s 49 of the Property Law Act 1958 (Vic) (PLA), the ‘vendor and purchaser summons’ provision.[1]
[1]Originating Motion filed on 7 March 2019. The hearing and determination of the proceeding was referred to me by order of Justice John Dixon made on 6 June 2019.

The defendants (Vendors) are the registered proprietors of land with the address 405 Epping Road, Wollert, Victoria (Property). By contract of sale dated 1 June 2018 the Vendors agreed to sell to the plaintiff (Purchaser) the Property, comprising the land in Certificate of Title Volume 10262 Folio 462 (Land) and ‘the goods’[2] to the Purchaser for the price of $6,800,000 (Contract). On 5 June 2018,[3] the Purchaser paid a deposit of $400,000. A further (additional) deposit of $500,000 is due to be paid on 31 October 2019.[4] Settlement is due to take place on 28 January 2020 at which time the balance of the purchase price of $5,900,000 is payable.
[2]The goods sold with the land are intended by the contract to be listed or in an attached schedule.…

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 Wollert Epping Developments Pty Ltd v Batten

Details

AGLC: Wollert Epping Developments Pty Ltd v Batten [2019] VSC 618
Case: [2019] VSC 618
Decision Date: 11 September 2019

CaseChat Overview and Summary

The case of Wollert Epping Developments Pty Ltd v Batten involved a dispute between a property developer and the vendors regarding the sale of land. The developer sought relief under section 49(1) of the Property Law Act 1958, alleging that the vendors were in breach of the warranties that they were in possession of the land and that at settlement they would hold an unencumbered estate in fee simple in the land. The vendors argued that the questions were hypothetical or pointless, as the identity of the land was assured by an identity clause in the contract, and that any issues were resolved by the actual description of the land in the Certificate of Title.

The court was required to decide whether the questions posed by the developer were indeed hypothetical or if they raised genuine concerns about the vendors' warranties. The court also had to consider the interaction between the warranties and the identity clause in the contract, and whether the difference between the description of the land in the Certificate of Title and the actual occupation of the land by the vendors constituted a breach of warranty. Additionally, the court needed to examine whether the encroachment by a boundary fence was relevant to the dispute.

In determining the matter, the court found that the questions posed by the developer were not hypothetical or pointless. The court held that the identity clause in the contract did not preclude the developer from seeking relief under the warranties, as the warranties were separate and distinct from the identity clause. The court also found that the difference between the description of the land in the Certificate of Title and the actual occupation of the land by the vendors constituted a breach of warranty, as the vendors were not in possession of the land as described in the contract. The court further held that the encroachment by a boundary fence was not relevant to the dispute. The court concluded that the vendors were in breach of their warranties, and the developer was entitled to relief under section 49(1) of the Property Law Act 1958.

The court ordered that the vendors were to rectify the breaches of warranty by either transferring an unencumbered estate in fee simple in the land to the developer or by returning the deposit paid by the developer. The court also ordered that the vendors pay the developer's costs of the proceeding.

Orders