Wallace v Hermans [1974] HCA 42

High Court of Australia McTiernan A.C.J. Stephen and Mason JJ. Wallace v Hermans [1974] HCA 42

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 25 McTiernan A.C.J.

I would dismiss this appeal and would do so for the reasons prepared by my brother Stephen.

Stephen J.

This is the third of three appeals from the New South Wales Supreme Court concerned with the failure to annex to standard form contracts of sale planning certificates disclosing how the subject land may be affected by town planning provisions.

However it is to be distinguished from the earlier appeals, the A.S.L. Developments appeals [11] and that of Turner v. Labafox International Pty. Ltd. [1] , in that here it is not the would-be rescinding party which is the appellant; the learned primary judge, Helsham J., declared the vendor's rescission to be effective in law and it is from that decision that the purchasers now appeal. The correctness of the decision in Wolczyk v. Barr [2] is again challenged, on this occasion by the appellants, while the respondent seeks to rely upon it and also to uphold the conclusion of Helsham J. that she did not by her conduct lose the right of rescission which it conferred upon her.

1. Ante, p. 634. 2. Ante, p. 660. 3. (1970) 92 W.N. (N.S.W.) 518.

Once again I am fortunate in being able to adopt as my own the statement of facts by my brother Mason. In this appeal, as in the A.S.L. Developments appeals [11] , it is the 1965 edition of the standard form of contract of sale that is in issue; the meaning and effect given to it by the judgment in Wolczyk v. Barr [2] I regard as correct and my reasons for so holding are those expressed in my judgment in the A.S.L. Developments appeals [11] . It follows that, since the property the subject of this contract of sale was affected by an interim development order, the vendor acquired a right to rescind the contract pursuant to cl. 16. The only question is whether she lost that right by acts of affirmation during the period from date of contract, 10th January 1969, until date of rescission, 12th July 1973. The answer to that question in turn depends exclusively upon whether or not there was on the vendor's part such knowledge of the facts giving rise to the right to rescind as to confer upon acts of affirmation the effect of an irrevocable election. The existence of acts of affirmation is not in doubt but the existence of relevant knowledge is.