NSW Caselaw
Reported Decision : (2000) NSW ConvR 55-922
New South Wales Court of Appeal CITATION : PACIFICO v BERLIAN [1999] NSWCA 378 FILE NUMBER(S) : CA 40903/97 HEARING DATE(S) : 24 September 1999 JUDGMENT DATE : 24 September 1999
PACIFICO (TIMBER) PTY LIMITED PARTIES : v BERLIAN TIMBERS PTY LIMITED JUDGMENT OF : Handley JA at 1; Beazley JA at 21; Stein JA at 22
LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT FILE NUMBER(S) : EQ 3401/97 LOWER COURT JUDICIAL OFFICER : Windeyer J
COUNSEL : D J Hammerschlag (Appellant) C J Stevens/C Hodgson (Respondent) SOLICITORS : Foulsham & Geddes (Appellant) Colin Ferguson (Respondent) CATCHWORDS : CONTRACT - sale of land - conditional on registration of subdivision - option to rescind - whether purported rescission valid - whether breach of obligation to take all reasonable steps to register subdivision disentitled vendor from rescinding - whether refusal to comply with erroneous Council requirements unreasonable DECISION : Appeal dismissed with costs
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40903/97 EQ 3401/97 HANDLEY JA BEAZLEY JA STEIN JA
Friday 24 September 1999 PACIFICO (TIMBER) PTY LIMITED v BERLIAN TIMBERS PTY LIMITED
CONTRACT - sale of land - conditional on registration of subdivision - option to rescind - whether purported rescission valid - whether breach of obligation to take all reasonable steps to register subdivision disentitled vendor from rescinding - whether refusal to comply with erroneous Council requirement unreasonable
The appellant entered into a contract for the sale of land conditional upon a subdivision being registered within a certain time; either party could rescind if this condition was not met. The vendor delayed making the application for subdivision and when the subdivision was not registered by the due date, owing to some confusion over a council requirement for an additional fire-rated wall, the vendor rescinded. The trial Judge found that the vendor had breached its obligation to take all reasonable steps to register the subdivision and was not entitled to rescind. Specific performance was ordered. HELD : dismissing the appeal: (1) The appellant had not acted reasonably in its response to the erroneous requirement of the Council. (2) The trial Judge was correct in finding that the vendor's delay had disentitled it from exercising the option to rescind. ORDERS
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