Guest v Smith [2025] VCC 960

County Court of Victoria|2025-07-11|Before: Mr P

For the reasons discussed above, the plaintiffs are entitled to damages in the total sum of $149,988.85, made up as follows:

The plaintiffs made no submissions as to the question of statutory interest. The defendant's written submissions accepted that the plaintiffs were entitled to interest on their damages at the rate of 10 per cent fixed under the Penalty Interest Rates Act, from the date of the commencement of the proceeding to the date of judgment. The parties should seek to reach agreement on the question of interest.
Unless any party wishes to contend otherwise, I consider that the defendant should be ordered to pay the plaintiffs' costs of the trial assessment on the standard basis.
The parties are directed to provide my associate, within 14 days of the delivery of these reasons, an agreed draft order disposing of the proceeding consistent with these reasons or, if agreement cannot be reached, their competing draft orders. Depending upon what is received from the parties, I will then consider the necessary next steps to finalise the matter, including whether any further submissions are required.

I certify that these 33 pages are a true copy of the ruling of Judicial Registrar Bennett delivered on 11 July 2025.

[2] The exhibit to Mrs Guest's affidavit contains a text message dated 14 May with an offer "for 2800000 for 6 months settlement and 3300000 for 5 years settlement with 10 percent deposit". The apparent discrepancy between this and what Mrs Guest states in the body of her affidavit was unexplained. No point was taken about this and I do not consider the discrepancy to be relevant for present purposes.

[3] The exhibit to Mrs Guest's affidavit contains a text message apparently dated 28 August (rather than 17 June) referring to a $3 million offer with 3 year settlement. Again, no point was taken about this and I do not consider the discrepancy between the two dates to be relevant for present purposes.

[4] David P Lloyd and William F Rimmer, Victorian Land Contracts (Lawbook Co, 2020) at [GC35.50].

[5] Cf Tymstock Pty Ltd v Patrick [2019] VCC 1092 at [57]- [62].

[8] That is, the Contract price of $3,525,000.00 less the valuation of $3,100,000.00.

[9] Ian Freckelton, Expert Evidence (Lawbook Co, 6th ed, 2019) at [16.0.160]

[10] Because of the relatively long period in the present case between the termination of the Contract and the resale, the present case may be contrasted with other cases in which a resale price has simply been treated as a proxy for market value as at the date of termination. See, eg, Ripani v Century Legend Pty Ltd (No 4) [2024] FCA 1211 at [292]- [295]; McGorlick v Palmer [2022] VCC 1229 at [94]- [102]; Coleston v Carney [2019] VCC 177 at [20] (fn 2); Palasty v Parlby [2007] NSWCA 345 at [7]- [12].

[11] The plaintiffs cited Victorian Economic Development Corporation v Clovervale Pty Ltd [1992] VicRp 40; [1992] 1 VR 596 at 604.

[29] That is, the $3,525,000.00 purchase price less the $100,000.00 deposit.

[30] David P Lloyd and William F Rimmer, Victorian Land Contracts (Lawbook Co, 2020) at [GC35.200].

[42] [2019] VCC 1092 at [114]. See also at [117].

[55] [2025] VCC 649 at [121]- [126]. Grusauskas had not yet been published as at the date of the trial assessment hearing in the present case.

[56] Although the interest rate increased on 16 June 2023, the plaintiffs were prepared to use the lower rate for ease of calculation.

[63] Cf Statewide Developments Pty Ltd v Higgins [2011] NSWCA 35 at [69].

[65] [2007] NSWCA 345 at [53]. See also Grusauskas v Panourakis [2025] VCC 649 at [164].

[66] See David P Lloyd and William F Rimmer, Victorian Land Contracts (Lawbook Co, 2020) at [GC35.230].

[67] The plaintiffs' written submissions referred to holding costs of $35,490.98. In response to a query from the Court the day after the hearing, the plaintiffs confirmed by email dated 9 May 2025 that this was an error and that the correct amount claimed by them under this head is $24,986.83.

[68] I understand this to relate to weed spraying.

[70] [2010] NSWSC 183; (2010) 14 BPR 27,293 at [119]. (An appeal from this decision was dismissed: Statewide Developments Pty Ltd v Higgins [2011] NSWCA 35.)

[72] [2010] QCA 144 at [20]. See also at [27]-[28].

Interest Rates Act 1983

"I dealt with this matter in some detail in my decision in Bill v Clarke [2015] VCC 1721. According to that decision, no such award of interest as is claimed here should be made. If the principal on which it was calculated was not payable by reason of the termination of the contract, how could the interest be? This reasoning did not commend itself to Judge Woodward in Bensons Property Group Pty Ltd v Manderson and Tan (No 3) [2021] VCC 326. Mr Tennant referred to the decision of Ginnane J in Ironbridge Holdings Pty Ltd (administrators appointed) (receivers and managers appointed) v O'Grady [2020] VCC 344. At 374, in analogous circumstances, his Honour held that Mrs O'Grady was entitled 'to recover interest as an accrued debt. She does not have to establish damages. Debt is a separate cause of action.' The claim, which was unsuccessful in McDonald v Dennys Lascelles Ltd, was a claim in debt; namely, a claim for the overdue instalment of the purchase price. I remain respectfully unpersuaded that, as a matter of principle, the award of interest sought by the plaintiff should be made. However, since other judges of this Court and a judge of the Trial Division of the Supreme Court have taken the opposite approach, I propose following their lead and awarding the interest, despite the view which I continue to hold that no such award ought be made". (emphasis added)

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