Walker v Munnecke [2025] VCC 267

County Court of Victoria|2025-03-19

For the reasons given above, the plaintiffs did not comply with GC 20.2(b). They were therefore not entitled to end the Contract under GC 20.2 and, accordingly, GC 20.3 does not require the deposit to be refunded to them. It follows from the parties' positions as recorded in paragraph 3 above that the defendant is entitled to retain the deposit.
I propose to give judgment for the defendant and order that the plaintiffs pay the defendant's costs of the proceeding on the standard basis, unless either party has a basis for seeking to contend that I should do otherwise. Within 14 days of these reasons being handed down, the parties should confer and furnish my associate with an agreed minute of order to give effect to these reasons and, if there is any disagreement as to the appropriate form of order, short written submissions limited to 3 A4 pages on the points of disagreement.

I certify that these 128 pages are a true copy of the judgment of Judicial Registrar Bennett delivered on 20 March 2025.

[4] The defendant cited Long Forest Estate Pty Ltd v Singh [2020] VSC 604 at [25] and the authorities referred to therein by John Dixon J.

[5] The defendant cited Resources Capital Ltd v Giovinazzo [2024] VSC 548 at [20]- [21]; 3 Apples Childcare Centre Pty Ltd v MMC Pacific International Pty Ltd [2023] VSC 21 at [144]; Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [15]- [23].

[8] T155.1-158.21; 169.13-170.28; 180.16-.22; 185.12-186.2; 197.8-.30; 198.17-203.17.

[9] Mrs Walker swore an affidavit on 21 August 2023 for the purpose of resisting the defendant's summary judgment application.

[15] T125. See also the evidence to the same effect at T127.

[31] The defendant referred to Mr Walker's evidence at T227-230.

[44] Mr Musgrove accepted in cross-examination (T302) that, given his role, it would be reasonable for lawyers acting for a third party to expect that someone in his position would deal with them fairly and candidly.

[51] See paragraph 10 of Mr Musgrove's witness statement.

[53] See eg Cross on Evidence (13th ed) at 45, citing Claremont Petroleum NL v Cummings [1992] FCA 446; (1992) 110 ALR 239 at 259.

[54] I note that, somewhat analogously, the absence of a party's accountant has been held to be relevant: see Cross on Evidence (13th ed) at 44, citing Payne v Parker [1976] 1 NSWLR 191 at 202.

[55] Australian Oxford Dictionary, 4th ed, 2004.

[62] The defendant cited Re de Garis and Rose's Lease [1923] VicLawRp 77; [1924] VLR 38; Regional Development Australia Murraylands and Riverland Inc v Smith (2015) 215 IR 317; [2015] SASCFC 160 at [128].

[67] The Walkers' position went slightly further than this, in that they contended that they would not be granted the loan unless and until they sold the Busana Property for at least $1.4 million. However, the question of that additional gloss is of relevance to Issue 2 rather than to Issue 1.

[68] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 at [51]. These principles regarding the construction of a commercial contract have been applied to contracts for the sale of domestic real estate: see eg Mediratta v Clark [2019] VSC 685 at [59].

[69] See eg MJ & PT Gunningham Pty Ltd (Trustee) v Redpa Dairy Partners Pty Ltd (Trustee) [2022] FCA 1334 at [54]; Vision Eye Institute Ltd v Kitchen [2014] QSC 260 at [119].

[71] The defendant cited Chong v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402 at [206]- [212].

[75] [2012] VSCA 113; (2012) 38 VR 241. The plaintiffs also relied upon Stoilas v Mazzocchetti [2013] SADC 74; Altis PropCo2 Pty Ltd v Majors Bay Development Pty Ltd [2022] NSWSC 403; Hong v Tsambikos [2015] VCC 1401; Simcevski v Dixon [2017] VSC 197; Hera Project v Bisognin (No 3) [2017] VSC 268.

[81] In Sentinel, the Court of Appeal referred to the distinction between a case in which the contract contains a term such as GC 20.2, in which case propositions (6) and following apply, and a case in which the contract does not contain such a term, in which case propositions (1) to (5) apply: see [2024] QCA 14 at [133].

[92] See, eg, Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135 at 150-152.

[101] See, eg, Sandra Investments Pty Ltd v Booth [1983] HCA 46; (1983) 153 CLR 153 at 157, 158, 161, 163.

[102] Zieme [1963] VicRp 34; [1963] VR 214 at 222; Meehan v Jones [1982] HCA 52; (1982) 149 CLR 571 at 581, 588, 597-598.

[104] The plaintiffs cited Joseph Finance and Investment Pty Ltd v Eastwood Retirement Pty Ltd [2023] VSC 731 at [65].

[105] The defendant cited Foster v Hall [2012] NSWCA 122 at [33]- [34].

[106] See Centennial Coal Company Ltd v Xstrata Coal Pty Ltd [2009] NSWCA 341; 76 NSWLR 129 at [37]; Foster v Hall [2012] NSWCA 122 at [46].

[107] [1984] HCA 64; (1984) 156 CLR 41 at 64 per Gibbs CJ. The plaintiffs also referred in this context to the decision of the High Court in Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 at 659 [41], in which the Court referred to Hospital Products in considering what was required by an obligation to use reasonable endeavours to achieve a contractual object.

[108] See eg Altis [2022] NSWSC 403 at [73].

[109] The defendant cited Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135 at 150-152.

[110] The plaintiffs cited Altis PropCo2 Pty Ltd v Majors Bay Development Pty Ltd [2022] NSWSC 404 at [104] per Ball J, who cited Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135 at 150-152.

[111] See Centennial Coal Company Ltd v Xstrata Coal Pty Ltd [2009] NSWCA 341; 76 NSWLR 129 at [26].

[112] See Joseph Finance and Investment Pty Ltd v Eastwood Retirement Pty Ltd [2023] VSC 731 at [84] and the authorities referred to therein.

[113] T154.11-.18; 154.30-155.1; 155.5-.8, 161.14-17, 164.10-.13, 175.11-.14, 197.11-12, 201.31-202.1.

[114] T238.6-.9; 239.10-.28; T244.1-.13.

[125] T161.14-.15; 161.31-162.1; 162.6-.7. See also T163.22-.24 and 179.18-180.11.

[126] T155.1-.9. See also T164.11-.13; 168.9-.12; 197.11-.12; 197.29-.30.

[127] T157.1-.4. See also T197.13-.14; 197.23-.24.

[131] Citing Piva v Sportiva Macchina [2006] VSC 321 at [39].

[132] The plaintiffs cited rule 29.01.1(4)(a) of the County Court Civil Procedure Rules 2018 and Clone Pty Ltd v Players Pty Ltd [2016] SASCFC 134 at [177].

[136] Namely, T154.11-.18; 155.5-.8; 161.10-.25; 175.11-.14.

[137] Namely, T161.14-17; 154.30-155.1; 164.10-.13; 197.11-12; 201.31-202.1.

[140] T161-162. A similar exchange occurred at T179-180.

[144] It is unclear from the affidavit whether this is the same phone call, or a different call.

[162] T219.22-220.3; 223-224; 218; 240.14.

[167] T181.24-.26 (but cf 183.23-.25) and 251.6-.16. I interpolate here that Senior Counsel for the Walkers, during oral closing address, accepted that it was "certainly a key pleaded issue" whether Ms Sculthorpe told Mrs Walker that CBA's position was that unless the Busana Property sold for $1.4 million, "it's all off".

[170] The defendant cited Foster v Hall [2012] NSWCA 122 at [44].

[175] The content of the message suggests that it was unlikely to have been sent by anybody other than Mrs Walker. Further, an earlier message in the chain from the same sender states "We are in Harriet's room". Mrs Walker said in her oral evidence that the Walkers were sitting in their daughter's room during the auction.

[188] For completeness, I note that the phrase "together with" was also considered, again in a statutory context, in Owners of Strata Plan 36131 v Dimitriou [2009] NSWCA 27. However, that case was not concerned with simultaneity of provision of documents and I do not consider it to be of assistance.

[189] See, generally, Babicka v ASD Corporation Aust Pty Ltd [2024] VSC 587 at [32]- [36].

[195] Dowsley v Westpac Life Insurance Services Ltd [2013] NSWSC 1208; St John of God Health Care Inc v Austin [2014] WASCA 11; (2014) 46 WAR 208; Woodside Energy Ltd v Zaghloul [2015] FCAFC 135; (2015) 234 FCR 198.

[196] See St John of God Health Care Inc v Austin [2014] WASCA 11; (2014) 46 WAR 208 at 211 [9].

Area Leases Act 1936

CTSC/1990/151.html "View Case"); Winkler v DPP [1990] FCA 194; (1990) 94 ALR 361; Truman v Truman [2008] FamCAFC 4; Earl of Morton's Trustees; Douglas v Macdougall [1944] SC 410

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