DAINFORD LIMITED v CHARLES KAREL URBAN [1989] NSWCA 56

DAINFORD LIMITED v CHARLES KAREL URBAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, SAMUELS and PRIESTLEY JJA 17 July 1989, 17 July 1989

[1989] NSWCA 56

Gleeson CJ This appeal arises out of a contract for the sale and purchase of land at Mosman which was entered into between the appellant, as purchaser, and the respondents as vendors on 30 April 1981. CL15 of the contract of sale was in the following terms: "15. If the Vendor shall be unable or unwilling to comply with or remove any objection or requisition or claim for compensation which the Purchaser has made and shall not have waived within fourteen days after the Vendor has given him notice of intention to rescind this agreement, the Vendor, whether he has or has not attempted to remove or comply with the objection or requisition and notwithstanding any negotiation in respect thereof and whether the Purchaser has or has not taken possession, shall be entitled by notice in writing to rescind this agreement."

The respondents, whom I shall call the vendors, on 4 June 1982 purported to rescind the contract of sale pursuant to CL15. That followed an exchange of correspondence between the solicitors for the respondents and the solicitors for the appellant, whom I shall call the purchaser. The correspondence originated in relation to claims and counterclaims that were made about certain parcels of land to which I shall make further reference in due course. As a result, the purchaser made certain assertions concerning its entitlement which were reflected in an objection and requisition and a claim to compensation. Although the claim to compensation was ultimately withdrawn, the objection and requisition were pursued. In those circumstances, by letter dated 4 May 1982, the solicitors for the vendors informed the solicitors for the purchaser that the vendors required the purchaser, pursuant to CL15, to waive the requisition and objection within fourteen days after the receipt of that letter and stated that unless the objection and requisition were waived, the vendors intended to rescind the contract. It was pursuant to that notice that the purported rescission of 4 June 1982 took place.