Appellant v Respondent

Appellant v Respondent - [2011] VSC 214 - VSC 2011 case summary — Zoe

[13]

On about 13 December 2000, Yarranova appears to have purported to assign the benefit of the contract to Newquay (Stage 2) Pty Ltd ('Newquay'). Nothing turns on the identity of the vendor of the unit for present purposes.
Mr Shaw is an engineer and he had certain requirements with regards to the unit's windows. When the windows did not open, he refused to settle and was served with a rescission notice. Negotiations followed but Mr Shaw was not satisfied that the windows met relevant building code requirements. He again refused to complete the purchase and a second rescission notice was served on 29 September 2003. (There was no issue about the validity or operation of the second notice.)
Mr Shaw had been represented by a firm of solicitors. Nevertheless, on 2 October 2003, he engaged Gadens to act for him in the dispute with the vendors. The 14 day period under the second rescission notice was due to expire on 14 October 2003.
A Gadens partner, Mr Lionel Appelboom, wrote a detailed letter of advice to Mr Shaw, dated 8 October 2003. The letter described the legal consequences of rescission and went on to say that:
- the vendor would not be entitled to rescind the contract if the windows did not accord with the relevant building code;
- if the vendor did purport to rescind, Mr Shaw could either accept the termination and seek damages for breach of contract or seek specific performance and damages;
- 'the safest legal option' would be for Mr Shaw to pay the balance of purchase monies, reserving his rights to claim compensation for breach;
- an injunction would not stop time running under the rescission notice; and
- specific performance should be sought in the Supreme Court because Mr Shaw did not want to settle before the windows complied with the code.
Mr Appelboom's letter advised Mr Shaw that he should lodge a caveat to prevent a re-sale and to protect his interest in the property...
Mr Shaw instructed Gadens to lodge a caveat claiming that he held an interest in the property as purchaser under the contract of sale. The caveat was lodged on 10 October 2003. Meanwhile, Mr Shaw continued to negotiate with the vendor.
Time under the rescission notice expired on 14 October 2003. Mr Shaw did not pay the balance of purchase monies.

Parties

Applicant/Plaintiff:

# Shaw

Respondent/Defendant:

Rigby Cooke Lawyers \[2011\] VSC 214

Legislation Cited (96)

Domestic Building Contracts (Amendment) Act 2004(Vic)

Legal Practice Act 1996(Vic)

Trading Act 1999

Civil and Administrative Tribunal Act 1988

Profession Act 2004

Civil and Administrative Tribunal Act 1998

Court (General Civil Procedure) Rules 2005

Land Act 1958

Transfer of Law Act 1958

Building Contracts Act 1995

Indeed, the Victorian Civil Administrative Tribunal Act 1998

Building Contracts (Amendment) Act 2004

Domestic Building Contracts (Amendment) Act 2004(Vic)

Legal Practice Act 1996(Vic)

Trading Act 1999

Civil and Administrative Tribunal Act 1988

Profession Act 2004

Civil and Administrative Tribunal Act 1998

Court (General Civil Procedure) Rules 2005

Land Act 1958

Transfer of Law Act 1958

Building Contracts Act 1995

Indeed, the Victorian Civil Administrative Tribunal Act 1998

Building Contracts (Amendment) Act 2004

Domestic Building Contracts (Amendment) Act 2004(Vic)

Legal Practice Act 1996(Vic)

Trading Act 1999

Civil and Administrative Tribunal Act 1988

Profession Act 2004

Civil and Administrative Tribunal Act 1998

Court (General Civil Procedure) Rules 2005

Land Act 1958

Transfer of Law Act 1958

Building Contracts Act 1995

Indeed, the Victorian Civil Administrative Tribunal Act 1998

Building Contracts (Amendment) Act 2004

Domestic Building Contracts (Amendment) Act 2004(Vic)

Legal Practice Act 1996(Vic)

Trading Act 1999

Civil and Administrative Tribunal Act 1988

Profession Act 2004

Civil and Administrative Tribunal Act 1998

Court (General Civil Procedure) Rules 2005

Land Act 1958

Transfer of Law Act 1958

Building Contracts Act 1995

Indeed, the Victorian Civil Administrative Tribunal Act 1998

Building Contracts (Amendment) Act 2004

Domestic Building Contracts (Amendment) Act 2004(Vic)

Legal Practice Act 1996(Vic)

Trading Act 1999

Civil and Administrative Tribunal Act 1988

Profession Act 2004

Civil and Administrative Tribunal Act 1998

Court (General Civil Procedure) Rules 2005

Land Act 1958

Transfer of Law Act 1958

Building Contracts Act 1995

Indeed, the Victorian Civil Administrative Tribunal Act 1998

Building Contracts (Amendment) Act 2004

Domestic Building Contracts (Amendment) Act 2004(Vic)

Legal Practice Act 1996(Vic)

Trading Act 1999

Civil and Administrative Tribunal Act 1988

Profession Act 2004

Civil and Administrative Tribunal Act 1998

Court (General Civil Procedure) Rules 2005

Land Act 1958

Transfer of Law Act 1958

Building Contracts Act 1995

Indeed, the Victorian Civil Administrative Tribunal Act 1998

Building Contracts (Amendment) Act 2004

Domestic Building Contracts (Amendment) Act 2004(Vic)

Legal Practice Act 1996(Vic)

Trading Act 1999

Civil and Administrative Tribunal Act 1988

Profession Act 2004

Civil and Administrative Tribunal Act 1998

Court (General Civil Procedure) Rules 2005

Land Act 1958

Transfer of Law Act 1958

Building Contracts Act 1995

Indeed, the Victorian Civil Administrative Tribunal Act 1998

Building Contracts (Amendment) Act 2004

Domestic Building Contracts (Amendment) Act 2004(Vic)

Legal Practice Act 1996(Vic)

Trading Act 1999

Civil and Administrative Tribunal Act 1988

Profession Act 2004

Civil and Administrative Tribunal Act 1998

Court (General Civil Procedure) Rules 2005

Land Act 1958

Transfer of Law Act 1958

Building Contracts Act 1995

Indeed, the Victorian Civil Administrative Tribunal Act 1998

Building Contracts (Amendment) Act 2004

Cases Cited (6)

(2007) 18 VR 48

(1990) 169 CLR 638

(1988) 165 CLR 543

(2005) 223 CLR 1

(2007) 18 VR 98

(2006) 15 VR 289

At a glance

Court

Decision date

Before

Source

Judgment (261 paragraphs)

Parties

Legislation Cited (96)

Cases Cited (6)