Sentinel Orange Homemaker Pty Ltd v Davis Investment Group Holdings Pty Ltd (in liquidation) [2021] NSWSC 550

Supreme Court New South Wales

Medium Neutral Citation: Sentinel Orange Homemaker Pty Ltd v Davis Investment Group Holdings Pty Ltd (in liquidation) [2021] NSWSC 550 Hearing dates: 26-28 April 2021 Date of orders: 18 May 2021 Decision date: 18 May 2021 Jurisdiction: Equity Before: Darke J Decision: Declarations to be made to the effect that the plaintiff validly terminated the contract and is entitled to the deposit. Catchwords: CONTRACTS – construction and interpretation – contract for sale of land – condition precedent that purchaser obtain a development approval by 31 March 2020 – Council approved development on 17 March 2020 – development approval informally notified to purchaser by following day – signed development approval documents not sent to purchaser until 2 April 2020 – held that purchaser did not obtain development approval by 31 March 2020 – condition precedent not satisfied CONTRACTS – termination – principle that a party cannot exercise contractual right in reliance upon event resulting from its own default – purchaser required to use all reasonable endeavours to obtain development approval – purchaser terminated contract due to lack of development approval –substantial chance that purchaser would have obtained development approval had they used reasonable endeavours – held that purchaser not entitled to terminate contract LAND LAW – deposits – contract for sale of land – purchaser paid $100,000 deposit – purchaser's wrongful termination constituted repudiation – vendor accepted repudiation and terminated contract – vendor entitled to deposit Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) s 4.18(1) Environmental Planning and Assessment Regulation 2000 (NSW) r 102(1) Cases Cited: Abourjaily v Parkview Estate Pty Ltd [2017] NSWSC 1256 Actall Pty Ltd v Pacific Bay Development Pty Ltd (2006) ANZ ConvR 65; [2005] NSWSC 1067 Al Achrafi v Topic (2016) 18 BPR 36,517; [2016] NSWSC 1807 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Ex parte Forssberg; In re Council of the Shire of Warringah (1927) 27 SR (NSW) 200 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Joseph Street Pty Ltd v Tan (2012) 38 VR 241; [2012] VSCA 113 Little v Fairfield Municipal Council (1962) 8 LGRA 64 Mordue v Kroone (2009) 14 BPR 26,771; [2009] NSWSC 255 Notaras v Waverley Council (2007) 161 LGERA 230; [2007] NSWCA 333 Plumor Pty Ltd v Handley (1996) 41 NSWLR 30 Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Tamanna v Zattere (2017) 18 BPR 37,139; [2017] NSWSC 1388 Waters Lane Pty Ltd v Sweeney (2008) Aust Contract R 90-287; [2007] NSWCA 200 Category: Principal judgment Parties: Sentinel Orange Homemaker Pty Ltd (Plaintiff) Davis Investment Group Holdings Pty Ltd (in liquidation) (Defendant) Representation: Counsel: Mr L Gor (Plaintiff) Mr D Brakell (Defendant)