DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12

High Court of Australia Stephen, Mason, Jacobs, Murphy and Aickin JJ. DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12

ORDER Appeal allowed as to part and order of the New South Wales Court of Appeal varied accordingly by omitting so much thereof as orders that the suit be referred back to the Equity Division for assessment of the damages claimed by the present respondents. Appeal otherwise dismissed without order as to costs of this appeal.

Cur. adv. vult.

The following written judgments were delivered:—

1978, April 26 Stephen, Mason and Jacobs JJ.

This is a case in which, as so often happens, the parties to a contract, having placed conflicting interpretations upon it, have claimed to rescind it on the ground that the other party has repudiated and renounced it. The controversy arises out of the provisions of special condition 4 of a contract of sale dated 12th November 1973 by which the appellant agreed to sell and the respondents agreed to purchase for $128,700 certain land at Fairfield, near Sydney, described in the contract as "being Lots 1 to 9 inclusive in the Vendors Plan of Sub-division a copy of which is annexed hereto and marked with the letter "A" ". There were thirty-five lots in the annexed plan of which the nine lots sold were shown as facing The Horsley Drive, an existing road. The plan also showed a number of proposed roads, including one which separated lots 5 and 6. In addition, it showed three proposed public reserves. Special conditions 4 and 5 in the contract provided:

4. The Plan of sub-division, a copy of which is annexed hereto, has been lodged with the Fairfield Municipal Council. The Vendor will proceed with all due dispatch to comply with the conditions of approval of the Council and to have the relevant plan of sub-division lodged for registration as a deposited plan, provided however that if the said plan has not been lodged for registration as a deposited plan within a period of 12 months from the date hereof or within such rescission. In any event, the Vendor shall not be otherwise liable for any delay in such lodgement or registration.