Christiansen v Klepac [2001] NSWSC 385

New South Wales Supreme Court

CITATION : Christiansen v Klepac [2001] NSWSC 385 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5018/99 HEARING DATE(S) : 19, 20 April 2001 JUDGMENT DATE : 20 April 2001

PARTIES : Morten Hovgaard Christiansen and Justine Gabrielle Christiansen (P) John Zdenko Klepac (D) JUDGMENT OF : Young J

COUNSEL : I Sanderson (P) P M Lane (D) SOLICITORS : Adrian G Byrne & Co (P) John Orford & Associates (D) CATCHWORDS : CONTRACTS [136]- Rescission- Election not to rescind- Factors involved- Whether unequivocal election by conduct evinced. Abram Steamship Co Ltd v Westville Shipping Co [1923] AC 773 Champtaloup v Thomas [1976] 2 NSWLR 264 Clough v London & North Western Railway Co (1871) LR 7 Ex 26 Hansen v Fayle (1971) 24 LGRA 22 CASES CITED : Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26 Kapamadjian v Assandra Developments Pty Ltd (1994) 6 BPR 13,373 Sargent v ASL Developments Pty Ltd (1974) 131 CLR 634 Tropical Traders Ltd v Goonan (1964) 111 CLR 41 Zuker v Straightlace Pty Ltd (1986) 11 NSWLR 87 DECISION : See paras 31 and 32

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG J

FRIDAY 20 APRIL 2001

5018/99 - CHRISTIANSEN v KLEPAC

JUDGMENT

1 HIS HONOUR: On 8 July 1998 the plaintiffs agreed to purchase a unit, to be built by the defendant, on land 5-7 Macquarie Place Mortdale. The contract was in the 1996 edition of the standard form. The purchase price was $270,000 with a 5 percent deposit. Special condition 3 of the contract required the vendor to use his best endeavours to procure registration of the necessary strata plan within 12 months from the date of the contract. Various versions of the contract say 6, 12 or 18 months, but it is common ground now that the contract should say 12 months. Printed clauses 28.2 and 28.3 of the contract are relevantly as follows: Clause 28.2: The vendor must do everything reasonable to have the plan registered within 12 months after the date of this contract, with or without any minor alteration to the plan or any document to be lodged with the plan validly required or made under legislation. Clause 28.3: If the plan is not registered within that time and in that manner -