M & H Allen Services Pty Ltd v Blue Sea

[2025] VSC 463

Supreme Court of Victoria

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Construction
3. › Co-Owners Deed — time-limited obligation to sell property — expiry of stipulated period — whether clause remained enforceable
1. Equity
2. › Specific performance
3. › Discretionary nature — term no longer capable of performance — plaintiff's contribution to delay — relief refused
1. Equity
2. › Estoppel
3. › Equitable estoppel — whether clear and unequivocal promise — no detrimental reliance established
1. Equity
2. › Waiver
3. › Unilateral waiver — no written waiver as required by deed — anti-waiver clause — revocability

Quick Take

The Court dismissed a unitholder's claim for specific performance of a clause requiring property to be placed for sale within 36 months, holding that once the stipulated time expired without unanimous agreement to extend, the clause ceased to have practical effect and was no longer capable of specific performance — particularly where the plaintiff's own conduct contributed to the failure to comply. Claims of waiver and equitable estoppel failed: the correspondence relied upon was inconsistent with a clear and unequivocal promise not to insist on strict compliance, and there was no evidence of detrimental reliance. The Court also confirmed that Order 55 r 55.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) does not confer a free-standing power to order sale of land but requires the applicant to establish an underlying legal right or recognised equity entitling it to such an order.