Asia Digital Investments Pty Ltd v Mara Dextra Pty Ltd

Asia Digital Investments Pty Ltd v Mara Dextra Pty Ltd [2023] VSC 565
Supreme Court of Victoria
Ierodiaconou AsJ
Off-the-plan contracts – Mara Dextra is a property developer, responsible for subdividing and selling blocks of land in a development at Portsea – Asia Digital holds real estate investments and develops property, and is a landlord of residential and retail property – Mara Dextra, as vendor, and Asia Digital, as purchaser, entered into two contracts for the sale of units in the Portsea development under off-the-plan contracts – s9AB(2) of the Sale of Land Act 1962 (Vic) provides that, in an off-the-plan contract, the vendor must disclose to the purchaser details of any works affecting the natural surface level of the land being sold, or any adjoining land in the same subdivision, which has not been disclosed in the off-the-plan contract and which to the vendor’s knowledge are or will be carried out after the date of the contract and before the registration of the plan of subdivision – s9AB(3) provides that the vendor must make this disclosure as soon as practicable after the details required to be disclosed have come to the vendor’s knowledge – surface level works were carried out – the vendor sent an email about the effect of these works to the purchaser’s builder, copying in the purchaser’s project manager and architect – after correspondence, the purchaser purported to rescind the contract for failure to comply with s9AB(2) to (4) – the vendor disputed the validity of the rescission – the purchaser commenced proceedings, seeking declarations the vendor failed to comply with s9AB(2) and that the purchaser had validly rescinded the contracts, and an order for return of the deposits with interest – held: the real issue was whether the whether the vendor’s purported disclosures met its obligation under s9AB of the Act, and, in particular, whether the disclosure had been made: (a) to the purchaser; (b) as soon as practicable; and (c) with the requisite details – s9AB has a consumer protection purpose, and should not be given a restrictive construction – the principles of agency are not ousted from s9AB so that disclosures under s9AB can only be made to the purchaser personally – however, it would not comply with s9AB for disclosures to be made to any agent of the purchaser – disclosure must be to an agent who has authority to act for the purchaser in its capacity as purchaser, or to receive notices and disclosures on the purchaser’s behalf, or to specifically receive disclosures under s9AB – there is no evidence that any of the purchaser’s builder, project manager, or architect had actual authority to receive communications for the purchaser or for the specific purposes of s9AB – it is never sufficient as a matter of law to simply say that X is agent, one must look further and inquire: X is agent to do what? – further, ostensible authority to receive disclosures which the Act requires to be made to the purchaser did not flow from holding a position as the purchaser’s builder, project manager, or architect – disclosure had not been made to the purchaser as required by s9AB(2), and the purchaser therefore had a valid ground for recission – further, the disclosure had not been made “as soon as practicable” as required by s9AB(3) – further, the disclosure had not contained sufficient details to comply with s9AB(2), even if it had been made to the purchaser – declarations and orders made as sought by the purchaser.
Asia Digital Investments Pty Ltd