ACOUSTIC and FELTS PTY LTD v MISTHOS and ORS [1996] NSWCA 8

ACOUSTIC and FELTS PTY LTD v MISTHOS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE and SHELLER JJA and WADDELL AJA 2 April 1996, 2 April 1996 [1996] NSWCA 8

Sale of Land Interpretation of special condition in contract — meaning of "either".

Waddell AJA This appeal concerns a contract for the sale of land dated 8 May 1989 whereby the appellant as vendor agreed to sell to the respondents as purchasers an industrial strata title unit at Silverwater for a price of $323,000.00, which included a deposit of $17,000.00. CL4(a) of the special conditions in the contract provided this agreement is subject to and conditional upon:

"4. This Agreement is subject to and conditional upon:

(a) Within five (5) months of the date hereof the vendor obtaining the due registration with the Land Titles Office of a Strata Plan of Subdivision substantially in accordance with the Plan annexed hereto and marked "A" and all costs and expenses of a (sic) incidental to the preparation approval and registration of the said Plan shall be borne by the vendor PROVIDED THAT where lodgment of the Plan for registration as a strata Plan with the Land Titles Office is delayed by virtue of strikes, lockouts, industrial disputation and/or inclement weather, the said period of five (5) months shall be extended for each day that the building works are affected by such strikes, lockouts, industrial disputation and/or inclement weather, and a statement by the vendor's Architect stating the said number of days shall be final and conclusive proof of delay. Where either of the time stipulations appearing herein have expired either party shall have the right by notice in writing to the other rescind this Agreement whereupon the deposit shall be refunded by the vendor to the purchaser and interest thereon dealt with in accordance with Clause [blank] hereof and neither party shall have any claim whatsoever against the other. The vendor covenants to use its best endeavours to do all things and to execute all documents necessary to comply with the provisions of this clause."