Etna & Ors v Arif & Ors

[1999] VSCA 99

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Interpretation
3. › Implied terms
4. › Sale of land 'off the plan'
5. › Contract conditional on registration of plan of subdivision by given date
6. › Vendor to use best endeavours to procure registration by that date
7. › Either party at liberty to rescind thereafter but before plan registered
8. › Whether any implied obligation on vendor to procure registration after date
9. › BP Refinery (Westernport) test for implication of terms
1. Practice and Procedure
2. › Amendment
3. › Amendment of statement of claim
4. › Re-formulation of contractual term as implied
5. › Whether for 'determining real question in controversy'
6. › Discretion
7. › Amendment at close of trial on judge's suggestion
8. › R.S.C. Ch. I, R.36.01(1)
1. Practice and Procedure
2. › Leave to appeal
3. › Against costs order
4. › Whether required by party challenging principal relief as well
5. › Whether required by solicitors ordered to pay costs
6. › Supreme Court Act 1986 (Vic), s 17A(1)(b)
1. Practice and Procedure
2. › Costs
3. › Order against solicitors for a party
4. › Whether solicitors 'caused costs to be wasted by negligence'
5. › Whether more than breach of duty of care needed
6. › Meaning of 'negligence' in R.63.23(1)
7. › Whether serious or gross negligence required
8. › R.S.C. Ch. I, R.63.23(1)

Quick Take

In 'off the plan' contracts of sale containing a condition requiring certification and registration of a plan of subdivision by a specified date, with a right of rescission after that date 'but before the Plan is registered', the vendor is under an implied obligation to continue using best endeavours to procure certification and registration after the specified date, so long as the contract remains on foot. A vendor who fails to take steps within their power to procure registration (such as paying a required contribution) is in breach of that implied obligation and loses the right to rescind. Separately, 'negligence' in R.63.23(1) (costs orders against solicitors) requires professional impropriety or serious/gross negligence, not mere tortious negligence or carelessness.