On 15 March 2023, in Knight 34 Langdon Rd P/L and anor v Bell and others [2023] VSCA 54, the Court of Appeal of the Supreme Court of Victoria (Emerton P, WalkerJA and J Forrest AJA) considered an application by an unsuccessful defendant for leave to adduce further evidence.
The case concerned a dispute about a Contract for the Sale of a unit 'off the plan' in Toorak. The purchase price was $3,528,000 and a deposit of $350,000 had been paid. The purchasers had obtained an order from the Trial Judge that the vendor specifically perform the contract by settling the sale.
The further evidence was said to go to whether the purchasers were actually in a position to settle, the argument being that they were not, as they did not have the loan funds available on the day that they had applied for specific performance.
The Court of Appeal rejected the application to rely on further evidence and dismissed the application for leave to appeal.
For our purposes, the Court of Appeal made the following observations (at paragraphs 69 to 70):
... we accept the Bells’ submission that it is not necessary, in order for a party to be properly characterised as ‘ready, willing and able’ to perform a contract of sale by payment of the purchase price, to have in hand — or in their bank account — the full amount of the purchase price at the time they claim to be ready, willing and able. As Menzies J observed in Bishop v Taylor:
The requirement of readiness and willingness does not demand that a purchaser should always have the purchase price in his pocket; all that is necessary is readiness and willingness to perform the contract according to its terms ((1968) 118 CLR 518, 525; [1968] HCA 68).70 That is, it is only necessary for a person to have the full amount of the purchase price immediately available as at the date on which the obligation to pay falls due (see Bisognin v Hera Projects Pty Ltd [2018] VSCA 93, [171]–[173] (Tate JA, Kyrou JA agreeing at [216], Coghlan JA agreeing at [217])). Thus, even if we had accepted that, on 19 July 2022, the Bells did not have immediate access to funds sufficient to pay the full purchase price for the Bell apartment, we would not have concluded that they had misled the Court by submitting that they were ready, willing and able to perform the contract of sale. In that regard, we accept the Bells’ submission that ‘[f]ar from demonstrating that they were not able to have the funds ready for settlement when the time for performance came, the so-called “fresh evidence” demonstrates exactly the opposite’
The Court of Appeal has therefore confirmed that to obtain an order for specific performance of a contract of sale of real estate in Victoria, all that a party to the contract needs to do is demonstrate that they will meet their obligations at the date that they fall due. In this case, the Trial Judge and the Court of Appeal found that the purchasers had met that requirement.
WG Stark
Hayden Starke Chambers
