Bisognin v Hera Project Pty Ltd

[2018] VSCA 93

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Sale of land
3. › Specific performance
4. › Whether purchaser ready willing and able to perform obligations
5. › Best endeavours obligation to expedite and procure registration of subdivision
6. › Effect of bona fide dispute as to allocation of contractual obligations
7. › Prevention principle
1. Contract
2. › Construction
3. › Bona fide dispute as to true construction
4. › Whether party holding incorrect construction thereby repudiates or is unable to perform
5. › No obligation to entertain alternative interpretation of contractual obligations
6. › DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 applied
1. Equity
2. › Specific performance
3. › Readiness willingness and ability
4. › Time at which assessed
5. › Whether failure to perform obligation believed to fall on other party demonstrates lack of readiness
6. › Relevance of vendors' misleading conduct causing delay
7. › Bishop v Taylor (1968) 118 CLR 518 applied
1. Property
2. › Sale of land
3. › Lot on unregistered plan of subdivision
4. › Purchaser's right of access
5. › Whether proposed development must be identified in contract of sale
6. › Sale of Land Act 1962 (Vic), s 9AD(3)

Quick Take

A party to a contract who holds a bona fide but incorrect view of the allocation of contractual obligations — particularly where that view is supported by a court order later reversed on appeal — is not thereby to be held unready, unwilling or unable to complete the contract for the purposes of specific performance. A best endeavours obligation does not require a party to perform obligations it genuinely believes fall on the other party, nor to entertain alternative constructions of the contract. Section 9AD(3) of the Sale of Land Act 1962 (Vic) does not require the proposed development to be identified in the contract of sale.