Kane & Co (NSW) Pty Ltd v Idolbox Pty Ltd [2024] NSWCA 278

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kane & Co (NSW) Pty Ltd v Idolbox Pty Ltd [2024] NSWCA 278 Hearing dates: 25 October 2024 Date of orders: 27 November 2024 Decision date: 27 November 2024 Before: Kirk JA at [1]; McHugh JA at [2]; and Basten AJA at [98] Decision: (1) Appeal allowed. (2) Judgment of the Court below be set aside. (3) Declare that the contract for sale of the property at 88-120 Clovelly Road, Randwick NSW 2031 dated 24 November 2022 between the first respondent as vendor and the appellant as purchaser was lawfully rescinded by the appellant's notice of recission dated 20 February 2023. (4) Order that the second respondent forthwith pay to the appellant the amount of $437,500.00 it held as stakeholder under the contract, together with any interest on that money. (5) The respondents pay the appellant's costs of the appeal. (6) There be no order as to the costs of the proceedings at first instance. Catchwords: CONTRACTS – Interpretation – no question of principle – where right of rescission engaged if Environmental Report "indicates that the property does not fall within the NSW Environment Protection Authority guidelines in relation to the contamination levels in, on or under the property and which permits the property to be used as a Service Station" – whether necessary to engage right of rescission that there be indication in Environmental Report that land could not be used as a service station Legislation Cited: Contaminated Land Management Act 1997 (NSW), ss 3, 4, 5, 10, 11, 12, 13, 14, 16, 17, 28, 60, 105 Consultants reporting on contaminated land: Contaminated Land Guidelines 2020 National Environment Protection (Assessment of Site Contamination) Measure 1999 Cases Cited: Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57 Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited and Another (2015) 256 CLR 104; [2015] HCA 37 Suttor v Gundowda (1950) 81 CLR 418; [1950] HCA 35 Category: Principal judgment Parties: Kane & Co (NSW) Pty Limited (Appellant) Idolbox Pty Limited (First Respondent) PPSA DEVELOPMENTS PTY LTD as trustee for the PPSA Developments Unit Trust (Second Respondent) Representation: Counsel: JT Gleeson SC with M Sheldon and LG Moretti (Appellant) JE O'Sullivan with N Simone (First and Second Respondents)