PLANS for a new childcare centre in Frankston South have stalled after a legal battle which ended up in the Victorian Supreme Court.
The site at 253 Humphries Road is currently owned by Tueno Investments Pty Ltd, which also operates Beachwood Early Learning Centres at 53 The Fairway in Bonbeach and 105 Humphries Road in Frankston South.
Last month, the Supreme Court ruled on an ongoing contract dispute between site vendor Tueno Investments and developer Saltworks Investments FS, which was planning to buy the land and lease it back to the original owner.
Last year, Tueno Investments agreed to sell the land to the purchaser for $2.25m with a deposit of $112,500 subject to multiple “special conditions”.
Tuneo Investments was required to obtain a planning permit for a 138-place childcare centre, and the parties were required to execute an Agreement for Lease and Lease for the Property within six weeks of issue of the planning approval.
The initial 15-year lease would have started at annual payments of $4,650 per licenced place per annum.
The Supreme Court found that the vendor had failed to obtain planning approval by a deadline of 30 September, 2025.
Its finding noted that “the vendor’s evidence addresses its contentions as to why that occurred and seeks the court to conclude that it is arguable that this was due to the conduct of the purchaser, or the architecture firm which shares a common director with the purchaser.”
The parties did not subsequently enter into an AFL and lease, but on 27 January purchaser Saltworks Investments FS informed the vendor that “it elected not to rescind or terminate the contract by reason of the failure of the special conditions, but affirmed the contract instead and elected to proceed to settlement in six months on 27 July, 2026.”
Saltworks Investments FS was the plaintiff at the Supreme Court, seeking to force settlement of the land without executing the agreed lease. The Supreme Court ultimately ruled against the plaintiff and dismissed the case, leaving the future of the site in limbo.
The childcare plans had drawn opposition from local residents.
Early last year Frankston Council granted a conditional permit for the childcare centre, subject to the submission of further plans, despite nearly 200 objections (“Childcare plans proceed despite objections” The News, 1/4/26).
The Supreme Court ruling noted that Frankston Council “issued a planning permit with endorsed plans for a childcare centre” on 18 June this year.
The Supreme Court ruling read that “on 7 April 2026, the purchaser [Saltworks Investments FS] commenced this proceeding seeking a declaration that the purchaser is entitled to call for settlement of the contract on 27 July 2026, without being required to negotiate the terms of an AFL and Lease in accordance with SC 19.2(ii) of the contract.”
Section 19.2(ii) of the contract stipulated that “the parties must negotiate amendments in good faith and expeditiously with a view to execution by the execution date.”
The court also considered Section 18 of the contract, which stipulated that “the vendor must at its cost use best endeavours to obtain the planning permit within a reasonable time after the contract date and, in any event, by 30 September 2025, or such later date as the parties agree in writing”; and that “if the planning permit is not issued by the permit date, then the purchaser may rescind the contract on 14 days’ written notice.
On rescission, the deposit must be refunded to the purchaser and neither party may make a further claim against the other.”
In its judgement, the Supreme Court found that “the satisfaction of [special conditions] 18 and 19 are essential conditions precedent to the obligations on the parties to proceed to settlement. That is, the parties are excused from performing their obligation to settle the contract in the absence of SCs 18 and 19 being fulfilled. Given that SCs 18 and 19 benefit both the purchaser and the vendor, the purchaser does not have a right to waive these conditions and call for settlement.”
First published in the Mornington News – 8 September 2026
