Anastasia Kalathas v 89 Ebley Street Pty Limited [2021] NSWSC 490

Supreme Court New South Wales

Medium Neutral Citation: Anastasia Kalathas v 89 Ebley Street Pty Limited [2021] NSWSC 490 Hearing dates: 31 March 2021 Date of orders: 19 April 2021 Decision date: 19 April 2021 Jurisdiction: Equity - Real Property List Before: Rein J Decision: [37] Catchwords: LAND LAW — Conveyancing — Contract for sale — Rescission – in 2017 the Vendor and Purchaser entered into a contract for sale of a commercial property which was yet to be built ("the Contract"). Upon registration of the strata plan in February 2020 ("the February Strata Plan") the Vendor issued a Completion Notice, an Occupation Certificate, and subsequently a Notice to Complete. The Contract included a car space for the commercial premises, however, the February Strata Plan did not include a car space allocated to the commercial lot of the Purchaser – the Purchaser sought to rescind the Contract in accordance with the Flight v Booth principle – the Vendor was not in the position to complete the Contract as at the date of the Notice to Complete as there was no car space on the registered plan allocated to the Purchaser's lot – the Purchaser was entitled to draw the conclusion from the February Strata Plan, the Vendor's Completion Notice and Notice to Complete that the Vendor was not proposing to convey a car space – the Purchaser was entitled to terminate the Contract and entitled to return of her deposit – the fact that the Vendor, almost three months after the Purchaser had commenced proceedings, registered a new strata plan and was by then in a position to complete did not assist the Vendor. CONTRACTS — Termination — Repudiation of contract — Readiness and willingness – by the February Strata Plan which did not include a car space and by issuing the Notice to Complete, the Vendor indicated an unwillingness to perform the Contract – the Court upheld the termination of the Contract on the basis of the Vendor's repudiatory conduct. No affirmation of the Contract by the Purchaser with knowledge of the absence of a car space. Legislation Cited: Conveyancing Act 1919 (NSW) Land Tax Management Act 1956 (NSW) Cases Cited: DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; (1978) 19 ALR 223 Fletcher v Manton [1940] HCA 32; (1940) 64 CLR 37 Flight v Booth (1834) 1 Bing (NC) 370; (1834) 131 ER 1160 Forrer v Nash (1865) 35 Beav 167; (1865) 55 ER 858 Higgins v Statewide Developments Pty Ltd [2010] NSWSC 183 Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61 Sargent v ASL Developments Ltd; Turnbull v ASL Developments Ltd (1974) 131 CLR 634 Shevill v Builders Licensing Board (1982) 149 CLR 620 Victorsen v Easy Living Holdings Pty Ltd [2019] NSWSC 1721 Texts Cited: N.C. Seddon and R.A. Bigwood, Cheshire & Fifoot: Law of Contract (11th Australian Edition 2017, LexisNexis) Category: Principal judgment Parties: Anastasia Kalathas (Plaintiff) 89 Ebley Street Pty Limited (First Defendant) DRM Law Pty Ltd trading as LAS Lawyers & Consultants (Second Defendant) Representation: Counsel: Mr H El-Hage (Plaintiff) Ms J Williams (First Defendant)