Application for leave to appeal against dismissal of summary judgment application
Whether primary Judge erred in setting aside order of Associate Justice granting summary judgment on basis claim had no real prospect of success
Claim alleged condition precedent or implied term in contract for sale of land that settlement subject to subdivision and rezoning of land
Quick Take
1A special condition in a contract for the sale of land requiring the vendor to provide access for the purpose of 'rezoning and subdivision approval prior to settlement' is, on its ordinary meaning, an access facilitation clause specifying the timing of the vendor's obligation to grant access, not a condition precedent requiring rezoning and subdivision to occur before settlement falls due.
2Where a contract specifies an unqualified settlement date with time of the essence, and contains no express language conditioning settlement on the occurrence of external events such as rezoning or subdivision approval, there is no basis to imply a term postponing settlement to a reasonable time after those events, as such a term would contradict the express terms.
3Under s 17A(6) of the Supreme Court Act 1986 (Vic), the dismissal of an application for summary judgment is tantamount to the grant of unconditional leave to defend, rendering an appeal from that dismissal incompetent.
