M & V Trading P/L v Shorecolt P/L [2001] NSWSC 1166

Reported Decision : (2002) NSW ConvR 56-017

New South Wales Supreme Court

CITATION : M & V Trading P/L v Shorecolt P/L [2001] NSWSC 1166 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3841/01 HEARING DATE(S) : 21 November 2001 JUDGMENT DATE : 14 December 2001

M & V Trading Pty Limited (Plaintiff) PARTIES : v Shorecolt Pty Limited (Defendant) JUDGMENT OF : Davies AJ at 1

COUNSEL : P - Mr R G Forster SC, Mr P P Strasser D - Mr M S Campbell SOLICITORS : P - Lang Gellert & Noonan D - Craig Milne & Company CATCHWORDS : Sale of land - whether vendor has provided "evidence of approval from ... Council for use of the premises as a Boarding House" - whether contract validly rescinded Conveyancing Act 1919, s55(2A) LEGISLATION CITED : Environmental Planning and Assessment Act 1979, s149 Land Tax Management Act 1956, s10Q CASES CITED : No cases cited DECISION : See paragraphs 30 and 31.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

DAVIES AJ

FRIDAY, 14 DECEMBER 2001 3841/01 - M & V TRADING PTY LIMITED v SHORECOLT PTY LIMITED

JUDGMENT 1 HIS HONOUR: The plaintiff, M & V Trading Pty Limited ("M & V"), seeks the return of a deposit of $145,000, paid under a contract for the sale and purchase of land. The return is sought on the basis that the plaintiff has validly rescinded the contract of sale. The plaintiff alternatively seeks an order for the repayment of the deposit under s 55(2A) of the Conveyancing Act, 1919. An order for interest is also sought. 2 In the proceedings, Mr R G Forster SC and Mr P P Strasser of counsel appeared for the plaintiff. Mr M S Campbell appeared for the defendant, Shorecolt Pty Limited ("Shorecolt"). 3 A property, known as the Montpelier Private Hotel in Elizabeth Bay Road, Elizabeth Bay, was put up for auction on 5 June 2001. Prior to the auction, the solicitors for M & V had written to the solicitors for Shorecolt making an offer of $2,700,000 subject to certain conditions. The offer was not accepted but most of the conditions were agreed to. It came to be understood by the auctioneer that, if a bid from M & V was successful, the agreed conditions would form part of the contract. M & V's bid of $2,900,000 was the successful bid. 4 Subsequently, on 5 June 2001, a contract was executed. It described the property as "Commercial Premises – Private Hotel". The price was $2,900,000, the deposit being $145,000. Attached to the contract was the letter from M & V's solicitors to Shorecolt's solicitors of 1 June 2001, showing the agreed conditions, two of which read as follows:- "3. No adjustment for land tax as property has been represented to be a Boarding House