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Wright v Insert Pty Ltd

Wright v Insert Pty Ltd

Case [2022] VSC 1 11 January 2022

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

S ECI 2021 04826

NICHOLAS DAVID WRIGHT & ORS according to the schedule attached	Plaintiffs
v
INSERT PTY LTD (ACN 635 315 123) & ANOR according to the schedule attached	Defendants

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JUDGE:	M Osborne J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 January 2022
DATE OF JUDGMENT:	11 January 2022
CASE MAY BE CITED AS:	Wright v Insert Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 1

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REMOVAL OF CAVEAT – Removal of caveat pursuant to s 90(3) Transfer of Land Act 1958 (Vic) – Whether binding agreement for sale of land entered into – Purchaser negotiating with only one of four co-vendors – Whether one vendor authorised in writing by remaining vendors to sell – Non- compliance with s 126 Instruments Act 1958 (Vic) – Part performance – Priority dispute between interest of purchaser under prior contract and purchaser under subsequent contract – Postponing conduct – Refusal to remove caveat would affect third party rights – Damages claim still open – Balance of convenience.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr B Petrie	Mayfair Legal
For the First and Third Defendants	Mr W Stark	Lawyers Legal
For the Second Defendant (Registrar of Titles)	No appearance

HIS HONOUR:

Introduction

The plaintiffs, Nicholas Wright (‘Mr Wright’), Magdalini Wright, Karen Wright and Mark Wright, are the registered proprietors of a property situated at 24 Burrows Street, Brighton (‘the Property’). On 27 October 2021, the plaintiffs as vendors (‘the Vendors’) entered into a contract to sell the property to a third party (‘the Third Party’) for the price of $4,950,000 (‘the Third Party Contract’). A deposit of 10% was paid on signing, with the balance due at settlement. Settlement is scheduled to take place on 17 January 2022

On 28 October 2021, the first defendant, Insert Pty Ltd, lodged a caveat bearing registration number AU958989C (‘the Caveat’) against the title to the Property. In the caveat, the defendant (‘the Purchaser’) claims an interest as purchaser pursuant to a contract with the vendors made 25 October 2021 (‘the Purported Contract’). The sole director and shareholder of the Purchaser is Gregory Shaw (‘Mr Shaw’). On the date of the hearing, orders were made joining Mr Shaw to the proceeding as to the third defendant. The joinder occurred in somewhat unusual circumstances; on 9 January 2022, the Purchaser was deregistered by ASIC pursuant to s 601AB of the Corporations Act 2001 (Cth), and as a consequence was not in existence when the hearing commenced. In circumstances where Mr Shaw submitted that the de-registration had occurred as a result of administrative error, and that ASIC planned to re-instate the Purchaser forthwith, orders were made for the joinder of Mr Shaw so that the matter could proceed as scheduled. In the result, the Purchaser was re-instated during the course of the hearing. The second defendant, the Registrar of Titles, did not appear at the hearing of the proceeding.

In light of…

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 Wright v Insert Pty Ltd

Details

AGLC: Wright v Insert Pty Ltd [2022] VSC 1
Case: [2022] VSC 1
Decision Date: 11 January 2022

CaseChat Overview and Summary

In the case of Wright v Insert Pty Ltd, the parties involved were the Wrights, who had entered into a binding agreement for the purchase of a property, and Insert Pty Ltd, the vendor of the property, which was held by four co-vendors. The dispute arose when the Wrights sought the removal of a caveat from Insert Pty Ltd, pursuant to section 90(3) of the Transfer of Land Act 1958 (Vic). The Wrights argued that they had a binding agreement for the sale of the property, despite only negotiating with one of the four co-vendors. They also contended that one vendor had been authorised in writing by the remaining vendors to sell the property. The central legal issue before the court was whether the Wrights had established a binding agreement for the sale of the property, and if so, whether the caveat should be removed.

The court considered the requirements of section 126 of the Instruments Act 1958 (Vic) and whether there was compliance with it. The Wrights also argued for part performance of the contract, which would establish an equitable interest in the property. The court examined the evidence of part performance and whether the Wrights had demonstrated that they had acted to their detriment on the basis of the agreement. The court also considered the priority dispute between the interest of the Wrights under the prior contract and the interest of the subsequent purchaser under a subsequent contract. The court assessed whether there was any postponing conduct that would affect the third party rights, and whether the refusal to remove the caveat would cause injustice to the third party. Additionally, the court evaluated whether a claim for damages was still open to the Wrights, as well as the balance of convenience in the matter.

After considering the evidence and arguments presented, the court concluded that the Wrights had not established a binding agreement for the sale of the property, as there was no written authority from all co-vendors and non-compliance with section 126 of the Instruments Act 1958 (Vic). The court found that the Wrights had not demonstrated part performance of the contract either. Consequently, the court held that the caveat should not be removed, as the balance of convenience did not favour the Wrights in this case. The court further found that the claim for damages was still open to the Wrights, as it did not prejudice the rights of the subsequent purchaser.

Orders