Votua Pty Ltd v Lineal Developments Pty Ltd [2024] VCC 1699

Issue 6: Is Votua entitled to an order that Lineal specifically perform the contract?

County Court of Victoria|2024-10-29

For the reasons I have already stated in relation to waiver and affirmation, the three "waiver" emails from Mr Gulliver on 13 August 2020, 21 October 2020 and 16 March 2021 all led Votua to adopt the assumption of fact that the contract would be completed.

I accept that if Lineal is allowed to depart from the above assumption, Votua would lose the value of the bargain, being the property itself, which was valued as of 21 March 2024 at $1,200,000.00 exclusive of GST.
I also accept that Mr Senia could have otherwise put his money to work and sought another property had he known that Lineal was planning to depart from the contract. I am not persuaded by Lineal's argument that Mr Senia only agreed he could have bought another property owing to a leading question. Mr Senia's uncontested evidence was that he was seeking to provide a source of revenue for his retirement through the various investments of his trust, it is, therefore, obvious that he would have bought another property in order to provide for himself had he known he would be left with nothing from expiration of the sunset clause.
I am also not persuaded by Lineal's arguments that Votua was not in a position to settle because the relevant funds were held in accounts that were in his personal name and not that of Votua. Mr Senia's evidence was, and I accept, that the point of keeping that money in the accounts dormant was to have the funds available to lend to the trust so that he could complete the purchase.

Issue 6: Is Votua entitled to an order that Lineal specifically perform the contract?

The High Court in Dougan v Ley[132] considered whether specific performance (a Court order to perform the contract) should be granted for the sale of the taxi and its license, or if damages (monetary compensation) would be sufficient. The Court held that the taxi license was considered a unique chattel of special value, and there were very few taxi licenses available at the time, therefore, monetary damages would not be an adequate remedy. This case is significant as it establishes that specific performance can be granted for the sale of unique chattels where damages would not suffice.
I accept, applying the principles set out in Dougan v Ley[133] that the property in the present case is unique, and that specific performance of the contract ought to be ordered.

Accordingly, for the foregoing reasons, I am satisfied that specific performance of the contract ought to be ordered.

I certify that these 125 pages are a true copy of the judgment of Her Honour Judge Burchell delivered on 29 October 2024.

[1] [2012] VSCA 113 at [41] ("Joseph Street").

[3] [2021] EWHC 3015 (Ch) at [97] ("Brooke Homes (Bicester) Ltd").

[4] [2017] VSC 268 ("Bisognin (No 3)").

[11] [2014] HCA 7 ("Woodside Energy").

[16] [2019] VSC 104 ("Primary Flooring").

[19] (1977) 180 CLR 266 ("BP Refinery").

[20] (1990) 170 CLR 394 ("Verwayen").

[21] Barns v Queensland National Bank Ltd [1906] HCA 26; (1906) 3 CLR 925 at [937], referring to Williams v Stern [1879] UKLawRpKQB 87; (1879) 5 QBD 409.

[22] [2015] HCA 37; (2015) 256 CLR 104 ("Mount Bruce Mining").

[23] [2024] QCA 75 ("Alliance").

[30] Transfield Pty Ltd v Arlo International Ltd (1980) 144 CLR 83 at 101.

[31] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 64 ("Hospital Products").

[39] Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 ("Esso").

[42] Erratt v Grills [2015] NSWSC 594 at [119] ("Erratt").

[43] North Queensland Pipeline No 1 Pty Ltd v QNI Resources Pty Ltd [2021] QSC 190 (Freeburn J) ("North Queensland Pipeline No 1").

[44] Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd [2015] FCAFC 127; (2015) 237 FCR 534 at [149].

[45] North Queensland Pipeline No 1 at [250].

[47] [1998] 164 CLR 387 ("Waltons Stores").

[53] N C Seddon, R A Bigwood, Cheshire & Fifoot Law of Contract, (11th Australian Edition, Lexis Nexis, 2017), [20.13].

[62] [1993] HCA 27; (1993) 182 CLR 26 at 42 at [28] ("Immer (No 145)").

[69] Woodside Energy at [41]-[43].

[72] Hospital Products at page 64 per Gibbs CJ, citing Sheffield District Railway Co v Great Central Railway Co (1911) 27 TLR 451 at [452].

[73] Joseph Street at [41] - [43].

[74] [1980] F.S.R 335 at [343] ("IBM").

[75] Jeannie Paterson, Andrew Robertson and Arlen Duke, Principles of Contract Law (5th edition, Thomson Reuters, 2011) 14.90, 348.

[84] [2001] NSWCA 187 ("Burger King").

[90] See Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84 at [96]-[97]; Jobern Pty Ltd v BreakFree Resorts (Victoria) Pty Ltd [2007] FCA 1066 at [134]- [136].

[95] [2019] VSC 104 ("Primary Flooring").

[98] (1982) 149 CLR 337 ("Codelfa").

[108] N C Seddon, R A Bigwood, Cheshire & Fifoot Law of Contract (11th Australian Edition, Lexis Nexis, 2017), [20.13].

[112] [1959] HCA 8; (1959) 101 CLR 298 at pages 308, 312 and 320-321 ("Jones v Dunkel").

[115] Birney v Birney [2024] NSWSC 591 at [37].

[116] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at [362] per Dixon J.

[132] [1946] HCA 3; (1946) 71 CLR 142 ("Dougan v Ley").

l "View Case"); Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234; BP Refinery (Westernport) v Hastings Shire Council (1977) 180 CLR 266; The Commonwealth v Verwayen (1990) 170 CLR 394; Barns v Queensland National Bank Ltd [1906] HCA 26; (1906) 3 CLR 925; Williams v Stern [1879] UKLawRpKQB 87; (1879) 5 QBD 409; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104; Alliance Building and Construction Pty Ltd v Veesaunt Property Syndicate 1 Pty Ltd [2024] QCA 75; Sargent v ASL Developments Ltd [1974] HCA 40; (1974) 131 CLR 634; Transfield Pty Ltd v Arlo International Ltd (1980) 144 CLR 83; Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41; Etna v Arif [1999] VSCA 99; [1999] 2 VR 353; Esso Australia Resources Pty Ltd v Southern Pacific Petroleum [2005] VSCA 228; Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169; Erratt v Grills [2015] NSWSC 594; North Queensland Pipeline No 1 Pty Ltd v QNI Resources Pty Ltd [2021] QSC 190; Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd [2015] FCAFC 127; (2015) 237 FCR 534; Waltons Stores (Interstate) Limited v Maher [1998] 164 CLR 387; Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570; Gange v Sullivan [1966] HCA 55; (1966) 116 CLR 418; Donaldson v Bexton [2006] QCA 559; [2007] 1 Qd R 525; Immer (No 145) [1993] HCA 27; (1993) 182 CLR 26; Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1459; Terrell v Mabie Todd & Co Ltd (1952) 69 RPC 234; Sheffield District Railway Co v Great Central Railway Co (1911) 27 TLR 451; IBM United Kingdom Ltd v Rockware Glass Ltd [1980] F.S.R 335; Royal Botanic Gardens and Domain Trust v South Sydney Council [2002] HCA 5; Burger King Corporation v Hungry Jack's Pty Limited [2001] NSWCA 187; Specialist Diagnostic Services Pty Ltd v Healthscope Ltd [2012] VSCA 175; Codelfa Construction Pty Ltd v State Railway Authority (NSW) (1982) 149 CLR 337; Grocon Constructions (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd [2014] VSC 597; Ansett Transport Industries (Operations) Pty Ltd v Commonwealth Byrne v Australian Airlines Ltd [1977] HCA 71; (1977) 139 CLR 54; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Payne v Parker [1976] 1 NSWLR 191; Birney v Birney [2024] NSWSC 591; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Dougan v Ley [1946] HCA 3; (1946) 71 CLR 142

"Three general observations can be made about obligations to use reasonable endeavours to achieve a contractual object. First, an obligation expressed thus is not an absolute or unconditional obligation. Secondly, the nature and extent of an obligation imposed in such terms is necessarily conditioned by what is reasonable in the circumstances, which can include circumstances that may affect an obligor's business. This was explained by Mason J in Hospital Products Ltd v United States Surgical Corporation [(1984) [1984] HCA 64; 156 CLR 41], which concerned a sole distributor's obligation to use 'best efforts' to promote the sale of a manufacturer's products.

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