NSW Caselaw
HODGEKISS v ZADRO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
KIRBY P, MAHONEY and PRIESTLEY JJA 13 December 1989, 21 December 1989
[1989] NSWCA 245
LAND -conveyancing practice — anti-gazumping legislation — validity of form of preliminary agreement — whether valid — whether complied with by purchaser — whether trial judge justified in refusing to order specific performance — held:
(1) The Court would assume, without deciding, that the preliminary agreement produced enforceable rights and duties in the vendor and purchaser.
Molodysky v Vema Australia Pty Limited (1989) NSW Conv R55-446; Sloane and Anor v McDonald Industries (Sales) Pty Ltd (1989) NSW Conv R55-470;
Shoard v Palmer and General Credits Limited, Court of Appeal, unreported, 21 December 1989 referred to; Hodgekiss v Zadro (1989) NSW Conv R55-471 affirmed.
STATUTES - construction - inconsistency between legislative provision contemplating a prescribed form and the provisions of such form - form held to be invalid - consequences of - whether effect should nonetheless be given to the signature by the parties of the prescribed form - held: Having regard to the terms of the preliminary agreement and discretionary considerations which sustained the orders at first instance, it was not necessary for the Court of Appeal to express an opinion on the validity of the form or the other grounds upon which its provisions might be enforced. Sloane and Anor v McDonald Industries (Sales) Pty Ltd (1989) NSW Conv R 55-470; Tokyo Mart Pty Ltd v Campbell (1989) 15 NSWLR 275; Bermingham v Corrective Services Commission of New South Wales (1989) 15 NSWLR 292 referred to.
LAW REFORM - conveyancing - invalidity of form of preliminary agreement - inconsistency of form as prescribed and statutory requirements of the form - suggestion by Kirby P of the need to give urgent attention to the issue either by legislation or by revision of the prescribed form Sloane and Anor v McDonald Industries (Sales) Pty Ltd (1989) NSW Conv R55-470 referred to.
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