NSW Caselaw
New South Wales Court of Appeal CITATION : Cuzeno Pty Ltd v Powercell Pty Ltd [1999] NSWCA 344 FILE NUMBER(S) : CA 40628/98 HEARING DATE(S) : 18 August 1999 JUDGMENT DATE : 22 September 1999
PARTIES : Cuzeno Pty Limited ACN 001 291 738 v Powercell Pty Limited ACN 051 968 613 JUDGMENT OF : Priestley JA at 1; Stein JA at 44; Davies AJA at 45
LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 2325/97 LOWER COURT JUDICIAL OFFICER : His Honour Judge Williams
COUNSEL : Appellant - T.G.R. Parker Respondent - C. Harris SOLICITORS : Appellant - Michie, Shehadie & Co Respondent - Willis Bowring CATCHWORDS : Contract for sale of land in association with contract to build; Rescission; New agreement for contract to build ACTS CITED : Conveyancing Act s 54A District Court Act s 134 Coulton v Holcombe (1986) 162 CLR CASES CITED: O'Rourke v Hoeven [1974] 1 NSWLR 622 Regent v Millett (1976) 133 CLR 679 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 DECISION : Appeal by Cuzeno dismissed with costs.; Application for leave for Powercell to file cross appeal dismissed, no order for costs.
THE SUPREME COURT OF NEW SOUTH WALES
COURT OF APPEAL
CA 40628/98 DC 2325/97
PRIESTLEY JA STEIN JA DAVIES AJA
22 September 1999
CUZENO PTY LTD v POWERCELL PTY LTD CONTRACT FOR SALE OF LAND IN ASSOCIATION WITH CONTRACT TO BUILD - RESCISSION - NEW AGREEMENT FOR CONTRACT TO BUILD - SECTION 54A CONVEYANCING ACT.
A builder and a developer agreed the builder would build a block of units on the developer's land and that the builder would be paid by a transfer of half the units. The builder entered into contracts to sell each of his units to individual purchasers. Then he and the developer agreed to rescind the agreement to transfer the units to him; instead he would receive an agreed sum for building the units. The trial judge found that the developer had agreed to " take over as vendor " the contracts entered into by the builder. Later the developer refused to do this and sold the units to different purchasers.
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