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[2001] VSC 291
plaintiff. The Registrar of Titles was ordered to remove caveat X545042J, or not to record and to return it if it had not been recorded; the defendants were ordered to pay the plaintiffs’ costs, including any...
The purchasers’ 8 June letter said they would withdraw if the vendors did not agree to extend the finance deadline. The vendors refused the extension and treated the sale contract as ended. Although the purchasers later said their finance had been approved and lodged a caveat, the Court considered it strongly arguable that their earlier letter had terminated the contract and that the election could not be reversed. In any event, the Court found the balance of convenience favoured removing the caveat, particularly because the vendors had resold the property and had another settlement scheduled. The Court did not finally decide whether the original contract remained on foot.
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2,367 words · generated 30/09/2026
McVeigh v Bell [2001] VSC 291 was an urgent application in the Supreme Court of Victoria concerning a caveat lodged by purchasers after a dispute over a finance condition in a contract of sale. The judgment was delivered by Beach J on 10 August 2001, following a hearing on 8 August 2001.
1 cited instrument linked from this judgment.
The plaintiffs owned a property at 8 Redditch Crescent, Deer Park. They agreed to sell it to Bell and Debrincat for $188,000 under a contract dated 29 May 2001. The relevant special condition made the contract “subject to and conditional upon the purchasers obtaining a loan of $170,000 from St George Bank, such loan to be approved by 12 June 2001” [8]. The judgment states there was no evidence that the bank had approved that loan by the specified date [12].
On 8 June, the purchasers’ solicitors asked for the finance date to be extended to 19 June. Their letter added: “In the event that such extension of time is not granted, then this letter is notice of confirmation that our clients regretfully withdraw from the purchase” [15]. The vendors did not grant an extension. On 13 June, their solicitors said they required confirmation that the contract was at an end [19]. The vendors then told the agent that the purchasers could not obtain finance and that the contract was over. The agent marketed the property again, and the vendors sold it to the Nguyens for $200,200 that day [25, 28, 31].
The vendors also entered into a contract to buy a property from G & B Vella Homes Pty Ltd for $220,000. Settlement was due on 12 August, a Sunday, and was expected to occur on 13 August, the same date as settlement of their sale to the Nguyens [34]. The timing made the caveat dispute urgent. The first plaintiff had sworn that, if the Deer Park sale could not settle, the plaintiffs would not be in a financial position to settle their purchase [66].
On 14 June, St George Bank advised a finance intermediary that a $172,500 loan had been approved, subject to confirmation that a Metway Bank mortgage would be discharged at settlement [40]. The purchasers then asserted that their finance application had been approved and that the contract was unconditional [44]. The vendors’ solicitors responded that the contract had ended because the special condition overrode general condition 3(c), and instructed the agent to refund monies [49]. The judgment does not reproduce the text of general condition 3(c), so it does not enable a detailed comparison of that condition with the special condition.
The purchasers lodged a caveat on 18 June, claiming an interest as buyers under the 29 May contract [56, 59]. They later tendered the balance of the purchase money, which the vendors refused [63]. The vendors applied under s 90(3) of the Transfer of Land Act 1958 (Vic) for removal of the caveat [66]. Beach J ordered removal, or non-recording and return if the caveat had not yet been recorded, and ordered the defendants to pay the plaintiffs’ costs [84].
Beach J gave two connected reasons. First, the Court considered it “strongly arguable” that the contract had ended on 8 June [69]. The letter was not simply a request to extend time. It made the purchasers’ withdrawal conditional on the vendors not agreeing to an extension by return facsimile. The Court read that language as an ultimatum: absent agreement, the purchasers’ letter operated as notice that they withdrew.
The Court also considered what the parties did after the letter. The defendants had not, before 13 June, taken an objective step that showed the plaintiffs they regarded the contract as continuing. The Court said their silence gave the plaintiffs reason to conclude that termination had occurred in accordance with the 8 June letter [69]. The vendors’ solicitors did send answers to requisitions on title on 13 June, a fact relied on by the defendants. But the Court did not regard that step, by itself, as overcoming the absence of an objective act by the defendants communicating that they still intended to proceed [37, 69].
Beach J’s view was that the purchasers’ election to terminate was irrevocable. The judgment cites Newbon v CML, Tropical Traders Ltd v Goonan and Sargent v A.S.L. in support of that view [69]. The judgment does not set out those authorities’ reasoning or explain their individual contributions. It is therefore safer to describe the role they play here as authorities cited for the Court’s stated view, rather than to attribute additional propositions to them.
Second, the Court said that even if the contract had not ended, the balance of convenience justified removing the caveat [69]. The Deer Park property had already been sold to the Nguyens. The Court considered that their rights would be significantly affected if the caveat remained, and noted they might themselves bring proceedings if the vendors could not fulfil the resale contract [69]. The vendors’ linked purchase also mattered: inability to settle the Deer Park sale could prevent them completing their purchase from G & B Vella Homes and expose them to loss of their deposit and a damages claim [69].
The Court considered the defendants’ conduct relevant to the practical consequences. It said the confusion about the sale had, in its view, been brought about solely by the defendants, and noted that they had not informed the plaintiffs that they were continuing to seek finance after 8 June [69]. The Court’s alternative reasoning was that damages would be an adequate remedy for the defendants if the contract were subsequently found to remain on foot [81]. That reasoning supported removing the caveat without deciding the ultimate contractual dispute.
This judgment is an application of existing legal principles to a particular urgent caveat dispute, not a comprehensive statement of the law governing finance conditions or caveats. The relevant statutory provision identified in the judgment is s 90(3) of the Transfer of Land Act 1958 (Vic), under which the plaintiffs sought removal of the caveat [66, 84]. The supplied text does not reproduce or explain the statutory test in detail. Its account of the Court’s reasoning instead focuses on the arguability of termination and the balance of convenience.
The judgment’s contract reasoning is also expressly provisional. Beach J said termination was “strongly arguable” [69], and addressed the possibility that a later decision-maker might find the contract remained on foot [81]. The order therefore should not be read as a final declaration that the contract was terminated. The Court used the termination view as one part of its reasoning and supplied an alternative ground for removing the caveat.
As to the authorities, the judgment says the election to terminate was irrevocable and refers to Newbon v CML, Tropical Traders Ltd v Goonan and Sargent v A.S.L. [69]. The supplied text does not describe the facts or holdings of those cases. It consequently does not support a fuller account of the law before this decision, or a claim that McVeigh v Bell changed the law after it. Its evident contribution in this record is the application of those cited authorities to a letter that linked a requested extension with an express withdrawal if the extension was refused.
The judgment contains an apparent date inconsistency: within paragraph 69, the alternative sentence refers to termination on “8 June 2000”, while the contract, correspondence and surrounding reasoning place the events in June 2001 [8, 15, 19, 69]. This deep dive has described the event as occurring on 8 June 2001 based on that consistent chronology, while noting the discrepancy rather than treating the isolated reference as a separate event.
At paragraph 69, Beach J described termination as “strongly arguable”. In plain English, the Court considered the vendors’ interpretation of the 8 June letter persuasive enough to support the application, but it was not finally deciding the parties’ contractual rights. The qualification matters because the decision was about the caveat and its practical effects.
The same paragraph says the defendants’ election to terminate was “irrevocable”. In context, the Court treated the letter’s stated withdrawal as an election that could not later be undone simply because finance was subsequently approved. The Court referred to three High Court decisions, but did not explain their reasoning in the excerpt.
The Court’s treatment of the vendors’ answers to requisitions illustrates its focus on objectively communicated conduct. The defendants relied on the fact that the vendors’ solicitors answered requisitions on title on 13 June. Beach J considered that there was no corresponding objective act by the defendants between 8 and 13 June indicating that they regarded the contract as continuing [37, 69]. Put simply, one party’s administrative step did not establish, in the Court’s view, that both parties understood the contract to remain alive.
Paragraph 81 states that, if the contract were later held to remain on foot, damages would be adequate for the defendants and they should be confined to that remedy. In ordinary terms, the Court considered money compensation could address the purchasers’ position if they ultimately succeeded on the contract question. This was a reason for allowing the caveat to be removed despite the unresolved dispute, not a final assessment of any damages claim.
Finally, paragraph 84 contains the operative orders. The Registrar was directed to remove the identified caveat or, if it had not been recorded, not to record it and to return it to the lodging party. The defendants were also ordered to pay the plaintiffs’ costs. Those orders resolved the immediate title-registration issue before the Court; they did not express a final determination of the contract’s status.
The reasoning is most directly relevant to a dispute with these features: a land-sale contract contains a finance condition with a stated approval date; the purchasers request an extension before that date; their communication expressly says they will withdraw if the extension is not granted; the vendors do not agree; and the purchasers later assert that the contract remains on foot after further finance developments.
The case also addresses circumstances where the parties’ later conduct may be said to conflict with an earlier communication. Here, the vendors answered requisitions on title, while the purchasers did not communicate before 13 June that they were continuing to pursue finance with a view to proceeding. The Court considered the objective communication between the parties important [37, 69]. A different letter, different timing, an agreed extension, or different conduct may materially alter the analysis; the judgment does not determine those hypothetical situations.
The caveat context is also central. The vendors had resold the property to third parties and entered into a linked purchase, with settlement dates creating urgency [31, 34, 66]. The Court relied on the effects of the caveat on the third-party purchasers and the vendors’ practical position when assessing the balance of convenience [69]. The decision therefore addresses an urgent application where the caveat’s continued presence could obstruct a pending settlement and affect people who were not parties to the original contract.
The case is not a general ruling that every purchaser’s request for extra finance time terminates a contract, nor that every later finance approval is irrelevant. Its treatment turned on the particular words in the 8 June letter, the absence of a communicated retraction before 13 June, and the balance-of-convenience circumstances shown by the evidence.
The supplied judgment contains no subsequent decisions or discussion of how later courts treated McVeigh v Bell. It is therefore not possible, from this source alone, to say whether later courts followed, distinguished, limited or questioned it. The three cases cited by Beach J are earlier authorities, not later treatment of McVeigh v Bell [69].
The source also does not establish whether the contract dispute proceeded to a later final hearing, or whether a later court finally decided whether the 29 May contract remained on foot. That is an important boundary on what can be drawn from this judgment. Its stated conclusion was that termination was strongly arguable, and it ordered caveat removal on that basis and an alternative balance-of-convenience analysis [69, 81, 84].
For research or application, the judgment’s own reasoning can be distinguished from any broader claim about its precedential reception. The source supports identifying the features Beach J considered material. It does not support a claim about the present status of the decision in later case law.
The judgment does not finally resolve whether the finance condition was satisfied, whether the 14 June loan approval met the contractual condition, or whether the contract was ultimately still on foot. The loan approval was for $172,500, not the $170,000 specified in the condition, and was subject to confirmation about discharge of the Metway Bank mortgage [8, 40]. The excerpt does not explain the legal or contractual significance of those differences.
The terms of general condition 3(c) are not reproduced. The vendors’ solicitors said the special condition overrode it [49], but the judgment does not analyse the text of that general condition. Nor does the excerpt set out the wider contractual terms that may have governed notice, finance applications, or termination.
The judgment also does not detail the evidence of the purchasers’ finance efforts before 14 June, or establish precisely when any loan approval was communicated to them. It records that the defendants were apparently pursuing finance after 8 June, but observes they did not inform the plaintiffs of that fact before 13 June [40, 69]. Those evidential details could matter to any final contractual determination, which this proceeding did not make.
Finally, while the Court cited three authorities for the irrevocability of the election, the judgment gives no exposition of their facts or ratio. The supplied text therefore leaves open how the principle might apply to differently worded communications, later conduct, or other finance-condition arrangements. Those questions are outside the final order made here.
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"This contract is subject to and conditional upon the purchasers obtaining a loan of $170,000 from St George Bank, such loan to be approved by 12 June 2001."
"Dear Sir, Bell and Debrincat from McVeigh 8 Redditch Crescent, Deer Park We advise that our clients have been unable to obtain formal loan approval to date. Therefore, we request an extension of the finance provision until Tuesday 19th of June, 2001. Kindly advise via return facsimile if your clients are agreeable to such extension. In the event that such extension of time is not granted, then this letter is notice of confirmation that our clients regretfully withdraw from the purchase."
"Re: McVEIGH to BELL & DEBRINCAT Ppty: 8 Redditch Crescent, Deer Park
We refer to the above and your facsimile dated 8th June, 2001.
Please note the Vendor will not grant an extension of the finance date, therefore we require confirmation that this Contract is at an end."
"Andrew Please be advised that a loan of $172,500 has been approved subject to 1/ Confirmation that Metway Bank has been discharged at settlement. Formal Loan Documentation will issue shortly."
"Dear Sir, Bell and Debrincat from McVeigh 8 Redditch Crescent, Deer Park
We refer to previous correspondence and confirm that our clients finance application has been approved and accordingly the Contract is now unconditional."
"Re: McVEIGH to BELL & DEBRINCAT Ppty: 8 Redditch Crescent, Deer Park
We refer to the above and confirm that the Contract is at an end as the Special condition overides General Condition 3(c).
We have today instructed the selling agent to refund all monies to the purchaser.
Should you have any queries, please do not hesitate to contact our office."
"As purchasers pursuant to the contract of sale dated 29 May 2001 between Terrence Bernard McVeigh and Marion McFarlane McVeigh as vendors and the caveators."
1. In my opinion, it is strongly arguable that the contract between the plaintiffs and the defendants came to an end on 8 June 2001. It was on that day that the defendants sought an extension of the finance provision from 12 June to 19 June. By its letter of 8 June the defendants issued an ultimatum to the plaintiffs in these terms:
"Kindly advise via return facsimile if your clients are agreeable to such extension. In the event that such extension is not granted, then this letter is notice of confirmation that our clients regretfully withdraw from the purchase." (The emphasis is mine.)
In other words, if you the vendors do not, by return facsimile, agree to an extension, then the contract is at an end. And perhaps, more to the point, at no stage thereafter prior to 13 June did the defendants resile from that position.
It was argued on behalf of the defendants that the fact that the plaintiffs' solicitors chose to answer the requisitions on title on 13 June, demonstrated that at that time the parties considered that the contract was still on foot. In my opinion, there was no objective act on the part of the defendants between 8 June and 13 June which demonstrated to the plaintiffs that the defendants considered that the contract was still on foot. Indeed, their silence in relation to the matter gave every reason to the plaintiffs to conclude that the contract had been terminated by the defendants on 8 June in accordance with the terms of the defendants' solicitors letter of that date.
In any event, in my opinion, the defendants' election to terminate the contract of 8 June was irrevocable. In that regard see Newbon v. CML [1935] HCA 33; (1935) 52 C.L.R. 723; Tropical Traders Ltd v. Goonan [1964] HCA 20; (1964) 111 C.L.R. 41 and Sargent v. A.S.L. [1974] HCA 40; (1974) 131 C.L.R. 634.
2. If my conclusion that the contract was terminated on 8 June 2000 is subsequently found to be erroneous, nevertheless I consider that the balance of convenience in this case is such as to justify the grant to the plaintiffs of the relief they seek. I say that for the following reasons:
(a) the property has now been sold to third parties. Clearly their rights would be significantly affected in the event the caveat was to remain in place. Further, they would themselves have a right to institute proceedings against the plaintiffs if the plaintiffs were unable to fulfil their contractual obligations to them seeking to recover any damage they have suffered as a consequence of losing their bargain;
(b) if the plaintiffs are unable to effect a settlement of the sale of the property to the Nguyens on 13 August, they will be unable to proceed with their purchase of the property from G & B Vella Homes Pty Ltd thereby lose the deposit they have paid in respect of the property. They will also leave themselves open to an action for damages at the suit of G & B Vella Homes Pty Ltd;
(c) the confusion (if any) which has arisen in relation to the sale of the property to the defendants has, in my view, been brought about solely by the actions of the defendants, not those of the plaintiffs. If the defendants were continuing to negotiate for a loan from St George Bank after 8 June with a view to being able to proceed with the purchase, as it is now clear they were, why were the plaintiffs and/or their solicitors not informed of that fact? Had they been so informed prior to 13 June it may well be that the plaintiffs would not have resold the property that day and entered into the contract to purchase the Altona Meadows property.
1. The Registrar of Titles is ordered pursuant to s.90(3) of the Transfer of Land Act 1958 to remove caveat number X545042J from the land in Certificate of Title Volume 10107 Folio 831. In the event that the said caveat has not been recorded, the Registrar of Titles is ordered not to record the said caveat, to reject he the said caveat and to return the said caveat to the lodging party;
2. The first and second defendants are ordered to pay the plaintiffs' costs of the proceeding including any reserved costs.
MR MORFUNI: Your Honour, because settlement is due on Monday, would Your Honour contemplate ordering an expedition of the order in case - - -
HIS HONOUR: Yes, if the order is prepared forthwith and brought to me I will authenticate it during the course of the morning.
MR MORFUNI: I will advise my instructing solicitors.
McVeigh
Bell [2001] VSC 291
The Registrar of Titles was ordered to remove caveat X545042J, or not to record and to return it if it had not been recorded; the defendants were ordered to pay the plaintiffs’ costs, including any reserved costs.