//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2017] VSC 383
Supreme Court of Victoria
2017-06-29
RIORDAN J
Original judgment source is linked above.
PROPERTY LAW - Sale of land - Subdivision of land - Reasonable access to lot - Sale of Land Act 1962 s 9AD considered.
1 The plaintiff ('the purchaser') seeks an order pursuant to s 9AD of the that the defendants ('the vendors') allow it reasonable access to Lot 1 on an unregistered Plan of Subdivision being part of the land described in Certificate of Title Volume 8776 Folio 892, being part of 1 Adrian Street, Cranbourne East for the purpose of completing a cultural heritage management plan ('Lot 1'). of the provides as follows:
The vendor shall allow the purchaser under a prescribed contract of sale reasonable access to the lot for any purpose connected with the proposed development or use of the lot.
2 The application is part of protracted litigation between the parties arising out of a contract of sale of Lot 1 exchanged on 25 March 2015 ('the 2015 Contract').
3 On 22 May 2017, I ordered that the vendors specifically perform the 2015 Contract for reasons then published.[1]
4 For the purposes of the present application the relevant facts are as follows:
5 By contract of sale of land dated 29 February 2012 ('the 2012 Contract'), the vendors agreed to sell Lot 1 to Joslin Street SA Developments Pty Ltd and/or nominee for a price of $3,600,000 including a deposit of $1,000,000 payable as follows:
(c) $2,600,000 payable on the settlement date being 31 December 2012 'or 14 days after the vendor gives notice to the purchaser of registration of the plan, whichever is the later'.
6 The special conditions of the 2012 Contract were as follows:
(b) The proposed Plan of Subdivision is attached hereto and shall not be amended without the consent of the Vendors;
(c) The Purchaser shall have the right and the Vendors will do all things necessary to assist the Purchaser or their agents having access to the property for the purpose of surveys and studies with a view to prepare a Plan of Subdivision.
7 On 26 July 2013, Joslin Street SA Developments Pty Ltd nominated Hera Project Pty Ltd as the purchaser under the 2012 Contract.
8 By Rescission Notice dated 21 October 2013 to the purchaser, the vendors gave notice that they intended to rescind the 2012 Contract on the basis that the Plan of Subdivision had not been approved.
9 By letter dated 26 November 2013 to the vendors' solicitors, the purchaser's solicitors advised that, prior to the Plan of Subdivision being lodged for approval, it was necessary for the vendors to complete and submit an Urban Design Framework ('UDF'). The vendors' solicitors responded by letter the next day stating that the 2012 Contract had been rescinded and '[i]t was not incumbent on our client to complete and submit to the Council an Urban Design Framework'.[2]
On or about 13 December 2013, the purchaser filed proceeding S CI 2013 06591 in the Supreme Court against the vendors seeking a declaration that the purported Rescission Notice was of no effect and an order that the vendors undertake all works required to procure an UDF for the Adrian Street precinct and pay any necessary Growth Areas Infrastructure Contribution.[3]
10 On 25 November 2014, at a mediation conference, the parties settled proceeding S CI 2013 06591 and agreed to enter into a new contract with additional terms, which was effected by the 2015 Contract.[4]
11 On 25 March 2015, the vendors and the purchaser entered into the 2015 Contract in substantially identical terms to the 2012 Contract except that it included three further special conditions as follows:[5]
12 The 2015 Contract specifically incorporated the vendor statement required under s 32(1) of the Sale of Land Act 1962. The vendor statement attached a property report which included 'indicative information about the location and extent of areas of Aboriginal cultural heritage sensitivity and is provided to assist with the decisions about the potential need to prepare a Cultural Heritage Management Plan in relation to the proposed activities on this property'.
13 On 26 May 2015, the City of Casey approved an Urban Design Framework for 1 & 2 Adrian Street, Cranbourne East. The 'Vision' in the framework plan was that 'the centre will include a supermarket and complementary retail uses along Adrian Street'.
14 On 3 August 2015, the Plan of Subdivision was certified by the City of Casey ('the Council').
15 By default notice dated 11 August 2015, the vendors gave notice to the purchaser of their intention to exercise their rights unless the purchaser paid the balance of the deposit of $990,000.
16 On 17 August 2015, the vendors filed an originating motion in proceeding S CI 2015 04285 seeking answers to questions about the 2015 Contract pursuant to s 49(1) of the Property Law Act 1958. The three questions were as follows:
(a) Question one: On its true construction, does special condition 1 of the Contract provide for the balance of the deposit in the sum of $990,000 to be paid within seven days of the relevant plan of subdivision being certified by the City of Casey pursuant to s 6 of the Subdivision Act 1988 or within seven days of the plan of subdivision being registered by the Registrar of Titles pursuant to s 22 of that Act?
(b) Question two: On its true construction, does special condition 8 of the Contract provide that if the relevant plan of subdivision is not registered by 25 August 2015 then either party may end the Contract by notice in writing to the other party?
(c) Question three: On its true construction, apart from any Growth Areas Infrastructure Contribution Payment, does special condition 10 of the Contract require the plaintiffs to make any payment to a third party that is necessary to be made to secure registration of the plan of subdivision?
17 On 21 August 2015, Cameron J, sitting in the Practice Court, determined that the answer to question one was that the balance of the deposit was only payable within seven days of registration of the Plan of Subdivision with the Registrar of Titles.[7]
18 The trial of questions two and three was conducted before Sloss J on 7, 8, 9, 10 and 14 December 2015.
19 On 4 March 2016, Sloss J delivered her reasons for judgment in proceeding S CI 2015 04285.[8] After answering question two in the affirmative, she answered question three as follows:
Question three: On its true construction, apart from any Growth Areas Infrastructure Contribution Payment, does special condition 10 of the Contract require the plaintiffs to make any payment to a third party that is necessary to be made to secure registration of the plan of subdivision?
Answer: Yes. The plaintiffs, as vendors of a lot on an unregistered plan of subdivision, undertook by special condition 10 of the Contract with Hera to use their "best endeavours to co-operate with the Purchaser, sign all documents, and do all acts and things necessary to give effect to the approval of the Plan of Subdivision and to give effect to the UDF ...". The planning permit issued by the City of Casey dated 11 June 2015 to allow the two lot subdivision of the 1 Adrian Street land, required the vendor[s] as "owner of the land" to enter into agreements with the relevant authorities in respect of each of the southern lot 2 and northern lot 1 (to be retained by them) for the provision of water supply, drainage, sewerage facilities, electricity and gas services, and telecommunication services (and fibre ready telecommunication facilities) in each case in accordance with the relevant authority's requirements and relevant legislation at the time, and also to ensure that the land is drained to the satisfaction of the Responsible Authority with outfall drainage constructed to provide a legal point of discharge to each allotment.
To the extent that entry into any such agreements required the payment of moneys, by way of fees and other charges, and the provision of bond moneys, those were obligations that were to be satisfied by the vendors.
20 By email of 3 May 2016 to Mr Waters, Mr Warren requested the vendors' permission for contractors to have access to 'the site' to carry out a Cultural Heritage Management Plan ('CHMP'), which he asserted was a condition of the planning permit.
21 By email of 4 May 2016 to Mr Waters, Mr Warren attached a plan showing that both lots in the subdivision required a CHMP. Mr Waters replied on the same day suggesting that 'we need to settle the Orders to be made first'.
22 By emailed letter of 31 May 2016 to Mr Waters, Mr Warren requested that the vendors confirm that access to 'the property' would be permitted for the purpose of the CHMP and suggested proposed orders to be made in the third proceeding.
23 By emailed letter of 2 June 2016 to Mr Warren, Mr Waters referred to the letter of 31 May 2016, suggested that the matter be listed so that orders could be made and said that 'We will respond to the other matters raised in your letter shortly'.
24 On 22 June 2016, Sloss J made declarations following the reasons, including the answers to questions two and three as referred to at [17] above, and the following orders:
(a) satisfying the conditions of the planning permit issued on 11 June 2015 by entering into the agreements with the relevant referral authorities, the Responsible Authority and the relevant telecommunications service provider in a timely way in respect of both lots on the plan of subdivision;
(b) making arrangements with their mortgagee to produce the duplicate Certificate of Title at the Land Titles Office (at the cost of the defendant); and
(c) promptly paying any Growth Areas Infrastructure Contribution Payment,
with a view to assisting the defendant [purchaser] to obtain the statement of compliance and thereby procure the registration of the plan.
25 On the same day, by letter to Mr Waters, Mr Warren reproduced the relevant parts of his letter of 31 May 2016 and set out the purchaser's requirements of the vendors including confirmation that they will permit the Hera's contractors to conduct a CHMP at 1 Adrian Street, Cranbourne upon reasonable notice.
26 By email of 24 June 2016 to Mr Waters, Mr Warren replied to the letter of the previous day and requested access to the land for the CHMP.
27 By email of 28 June 2016 to Mr Waters, Mr Warren asked whether the vendors had organised payment of the GAIC; and whether the CHMP could proceed.
28 By email of the same date, Mr Waters replied to the effect that he needed to see a copy of the application for permit with respect to the CHMP.
29 By letter dated 30 June 2016 to the purchaser's solicitors, Mr Waters responded relevantly stating that the vendors were under no obligation to provide access to the land for the purpose of obtaining a planning permit.
30 By email of 1 July 2016 to Mr Waters, Mr Warren contended that the vendors were required to provide access for the CHMP assessment.
31 On 29 August 2016, the vendor filed an application before Irving JR seeking an extension of time within which to file an application for leave to appeal the decision of Sloss J made 22 June 2016 (being some 40 days out of time). Unsealed copies of the application were served by email on the same day.
32 On 30 August 2016, Macaulay J, sitting in the Practice Court, granted an interim injunction in this proceeding (without opposition from the vendors) restraining the vendors from terminating the 2015 Contract until further order of the Court.
33 By email of 27 October 2016 to the vendors' current solicitors, T F Grundy Lawyer, Mr Warren requested access, for the first time, based on s 9AD(3) of the Sale of Land Act 1962. The email stated as follows:
You will be aware from the affidavit material filed in the various proceedings that our client has sought access to the subject land for the purpose of conducting a CHMP.
Your client's former solicitors insisted that our client had no contractual right to such access prior to settlement, whilst we disagreed.
It has since come to our attention that the question of access for the purpose of the CHMP is not a question of interpretation of the contract, but is rather a statutory right that our client has.
Section 9AD(3) of the Sale of Land Act provides that:
The vendor shall allow the purchaser under a prescribed contract of sale reasonable access to the lot for any purpose connected with the proposed development or use of the lot.
Can you please obtain instructions and confirm that your clients will allow access to the land for the purpose of our client conducting a CHMP on the land.
34 By email of 15 November 2016 to Mr Warren, T F Grundy Lawyer stated:
We are instructed by our clients that your client is not allowed access to the property for the purposes of preparing a cultural heritage management plan.
35 On 22 May 2017, I entered judgment for the purchaser and ordered specific performance of the 2015 Contract.
36 By Further Amended Statement of Claim dated 29 May 2017 the purchaser sought an order that the vendors allow the purchaser reasonable access to Lot 1 for any purpose connected with the proposed development or use of the lot pursuant to s 9AD(3) of the Sale of Land Act 1962.
(a) The insertion of s 9AD was effected by the Sale of Land (Allotments) Bill 1985 which also inserted ss 9AA, 9AB, 9AC, 9AE and 9AF. These amendments provided greater security to a purchaser by providing for an unfettered right to rescind for a period of 18 months if the plan had not been registered but was not intended to infringe on pre-existing rights of the vendor with respect to the land.
(b) The proper construction of s 9AD(3) is that the purchaser is entitled to access for any purpose connected with 'the' proposed development or proposed use of the lot.
(c) The use of the definite article 'the' contemplates an existing proposed development and to ensure certainty, the section should be interpreted as requiring the proposed development to be found within the contract of sale itself.
(d) The statement of the Court of Appeal in Kameel Pty Ltd v Commissioner of State Revenue[9] was obiter because that case dealt with the liability for land tax.
(a) There was no reason to read down the plain words of s 9AD(3) to impose a limitation that the proposed development be identified by the parties in the contract of sale.
(i) is unchanged from the time of entering into the 2012 Contract;
(ii) has at all times been in the contemplation of the parties; and
(iii) is incorporated in the contract of sale by reference to the UDF and giving effect to the UDF in special conditions 9 and 10 of the 2015 Contract.
(c) In its context, the objective purpose of s 9AD(3) is protective of the purchaser and an expansive reading should be preferred. The protective nature of the provision is consistent with the broad range of provisions introduced by the amending legislation which included the following:
(a) protections in relation to the deposit (ss 9AA and 9AF);
(b) insurance to be taken out by the vendor in relation to an owners corporation (s 9AAA);
(c) disclosure of works affecting the nature surface level of the lot or other lots in the same subdivision (s 9AB), including:
(1) works that have been carried out after the certification of the plan of subdivision and before the date of the contract (s 9AB(1)(a);
(2) are at the date of the contract being carried out or proposed to be carried out (s 9AB(1)(b));
(3) works that have been carried out after the date of the contract and before registration of the plan of subdivision (s 9AB(2));
(d) the right of a purchaser to rescind the contract if:
(1) there is a material amendment to the plan after the date of the contract and before registration of the plan of subdivision (s 9AC(2))
(2) the plan is not registered within 18 months or such other agreed time period (s 9AE);
(3) the land sold does not accord with the land in the plan (s 9AH);
(4) an amendment to the plan restricts or limits the use of the lot (s 10);
(d) The evidence establishes that at all times the vendors knew of the proposed supermarket development, which had been specifically referred to in the 2012 Contract. Further, the vendor statement contemplated the possibility that a CHMP may be required.
(e) The purchaser further submitted that its interpretation was supported by the statement of the Court of Appeal in Kameel Pty Ltd v Commissioner of State Revenue:
It is clearly within the contemplation of s 9AD(3) that a purchaser may enter onto a lot for purposes connected with the proposed development and use of the lot.[10]
Principles of statutory interpretation
The primary object of statutory construction is to construe the relevant provisions so that its legal meaning is consistent with the language and purpose of all of the provisions of the statute. The legal meaning is 'the meaning that the legislature is taken to have intended [the provision] to have'.
The Court of Appeal recently considered the principles of statutory construction in Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd. I summarise the approach adopted by the Court of Appeal as follows:
(a) First the Court considers the text of the relevant provision in its context, which includes the whole of the instrument, the existing state of the law and the legislative history.
(b) To identify the legislative purpose, consideration may be given to extrinsic material, such as parliamentary debates, only after 'exhausting the application of the ordinary rules of statutory construction'. However, extrinsic material 'cannot displace the clear meaning of the text'.
(c) If the literal or grammatical ('the literal') meaning of the text is consistent with the legislative purpose, the literal meaning will be accepted as the legal meaning.
(d) A construction that promotes the purpose of the Act is to be preferred to a construction that does not.
An issue may arise if the literal meaning conflicts with the legislative purpose. The resultant tension was described by Francis Bennion in Statutory Interpretation as follows:
Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with.
If the inconsistency between the literal meaning and the legislative purpose is the result of 'simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision', an alternative construction, which is consistent with the legislative purpose, may be more 'readily' adopted.
In other circumstances, in ascertaining the legal meaning it is '[t]he context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction [that] may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning' ('an alternative construction').
The determination of whether the legal meaning is the literal meaning or an alternative construction that better promotes the legislative purpose '[q]uite obviously [gives rise to] questions of degree'.
In Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd, the Court of Appeal recognised competing considerations as being:
(a) On one hand, '[r]ecent statements of the High Court have emphasised the primacy of the text in the resolution of any perceived tension between the text and the legislative purpose of the Act'.
(b) On the other hand, instances of inconsistencies, which may justify a departure from the literal meaning, were as follows:
(i) the literal meaning would conflict with other provisions of the statute;
(ii) the literal meaning is inconsistent with the purposes of the statute;
(iii) the literal meaning is incapable of practical application; or
(iv) adoption of the literal meaning would lead to a result which is absurd, unreasonable or anomalous.
Because 'the task remains the construction of the words the legislature has enacted', if an alternative construction is to be adopted as the legal meaning, it is necessary that such a construction is 'reasonably open' and 'consistent with the language in fact used by the legislature'.
Assuming that the Court finds an alternative construction is reasonably open and consistent with the language used in the provision, the legal meaning will be determined by balancing:
(a) the strength of the literal meaning as against the alternative construction: and
(b) the extent to which these meanings are consistent with the promotion of the legislative purpose.
This balancing exercise has been explained by High Court as follows:
(a) 'If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.'
(b) '[I]nconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.'
(c) An alternative construction will be rejected as the legal meaning if it fills 'gaps disclosed in legislation' or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'.[13]
40 In my opinion, it is not appropriate to give s 9AD(3) of the Sale of Land Act 1962 a restrictive interpretation substantially for the reasons submitted on behalf of the purchaser.
41 In particular, I consider that reading the subsection in its legislative context supports the contention that the provisions were introduced for the benefit of purchasers particularly in circumstances when a proposed sale of land is delayed while awaiting registration of a plan of subdivision. I accept the purchaser's submission that such an intention is readily inferred from ss 9AA, 9AAA, 9AB, 9AC, 9AE, 9AF and 9AG, which were also introduced into the Principal Act by Sale of Land (Allotments) Bill 1985.
42 If necessary, the legislative purpose inferred from the provisions of the Principal Act, and the Sale of Land (Allotments) Bill 1985 in particular, is supported by the second reading speech in which the Minister for Agricultural and Rural Affairs stated that the amendments were the result of a report on the Subdivision of Land Taskforce, which made recommendations 'primarily designed to simplify the subdivision procedure and thereby reduce the end cost to the purchaser'. With respect to s 9AD(3) he stated:
The purchaser cannot take legal possession of the land until the plan has been approved by the Registrar but is to be given reasonable access to the land for any purpose [connected] to the proposed development of the land.[14]
43 In my opinion, the vendors' restrictive interpretation gains no support from the second reading speech nor from the statement of the Court of Appeal in Kameel v Commissioner of State Revenue.[15]
44 Accordingly, I consider that the literal meaning of the text is consistent with the legislative purpose and must therefore be accepted as the legal meaning.
45 Further, in my opinion, the interpretation advanced by the vendors effectively requires the insertion of the words to the effect of 'as identified in the prescribed contract of sale' after the words 'any purpose'.
46 Although the insertion of such words would provide greater certainty as to the purposes that give rise to the right of access, I reject the vendors' submission for the following reasons:
(a) The insertion of the words are not consistent with the plain meaning of the text.
(b) The text of the legislation does not indicate any intention that the Parliament wanted certainty to have priority over a bona fide intention of the purchaser within the ambit of the subsection.
(c) If the legislature had intended that only purposes identified in the contract of sale could give rise to the right of access provided by the subsection, it could easily have so stated.
47 In the circumstances, I consider that the purchaser has established that it seeks access to the allotment for a purpose (being preparation of a CHMP) connected with the proposed development or use of the allotment (being as a supermarket), as envisaged from prior to entering into the 2015 Contract of Sale. Accordingly, I propose to grant the purchaser relief in the terms sought.
[2] With respect to this letter and future correspondence, I only refer to the contents to the extent they are relevant to the claim for access to Lot 1 for purposes of the UDF and a Cultural Heritage Management Plan.
[4] See [2017] VSC 268 [14]. Any difference between the terms agreed on 25 November and those inserted in the 2015 Contract is of no consequence to this proceeding.
[5] It also deleted special condition 2 of the 2012 Contract as it was no longer relevant to the future relationship between the parties.
[6] There were some minor changes in language between these special conditions and those that appeared in the Terms of Settlement signed on 25 November 2014 but no party placed significance on any such difference.
[7] Bisognin v Hera Project Pty Ltd [2015] VSC 647 [29].
[8] Bisognin v Hera Project Pty Ltd [2016] VSC 75.
[9] [2016] VSCA 83 [40]-[42].
[10] [2016] VSCA 83 [68] (Warren CJ and Tate JA).
[12] [2016] VSCA 320 [47]-[55] (Warren CJ, Whelan JA and Riordan AJA).
[13] [2017] VSC 51 [24]-[33] (citations omitted).
[14] Victoria, Parliamentary Debates, Legislative Assembly, 17 October 1985, 979, 981 (James Simmonds).
[15] [2016] VSCA 83 [68] (Warren CJ and Tate JA).
Hera Project Pty Ltd
Bisognin & Anor