BEECH v McCAULEY [1994] NSWCA 22

BEECH v McCAULEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, POWELL and COLE JJA 14 September 1994, 14 September 1994 [1994] NSWCA 22

Vendor and Purchaser — Matters arising after contract — Rescission — Grounds for Standard form of Agreement for Sale — C114, cl14A (Strata Title)

Powell J This is an Appeal from a Judgment delivered by Brownie J on 10th June 1993, and from Orders made by his Honour, both on that day and, in addition, on 29 November 1993, in what might be described conveniently as a Vendor and Purchaser suit. In that suit, the Appellant, Mr Beech, had sought against the Respondent, Mr McCauley, the following (inter alia) Declaration and Orders:

"(1) A declaration that the contract dated 30 July 1992 between the Defendant as Vendor and the Plaintiff as Purchaser of all that land within Folio Identifier 2/SP20238 was validly rescinded by the Plaintiff by Notice of Rescission dated 27 October 1992.

(3) An order that the Defendant be directed to instruct Mr I Resnekov of Century 21 Resnekov Realty to pay the sum of $34,100.00 plus accumulated interest to the Plaintiff.

(4) Alternatively to paral, para2 and para3 above, an order pursuant to Section S5 (2A) of the Conveyancing Act 1919 that the Defendant be directed to instruct Mr I Resnekov of Century 21 Resnekov Realty to pay the sum of $34,100.00 plus accumulated interest to the Plaintiff."

while the Respondent, in the Cross-Claim which he had filed, sought (inter alia) the following Declarations and Order: -

"(1) A declaration that the contract dated 30th July 1992 between the Cross-Claimant and Cross-Defendant was repudiated by the Cross-Defendant.

(2) A declaration that the said contract was validly terminated by the Cross-Claimant.

(3) A declaration that the deposit of $34,100.00 was validly forfeited by the Cross Claimant.