SCHENK & ANOR v. ACN 081 123 140 P/L [2002] NSWSC 123

Reported Decision : (2002) NSW ConvR 56-021

New South Wales Supreme Court

CITATION : SCHENK & ANOR v. ACN 081 123 140 P/L [2002] NSWSC 123 CURRENT JURISDICTION: EQUITY FILE NUMBER(S) : SC 5918/2001 HEARING DATE(S) : 06/02/2002 JUDGMENT DATE : 6 March 2002

PARTIES : Achim Schenk & Vittoria Lazzaro - Plaintiffs ACN 081 123 140 Pty Ltd - Defendant JUDGMENT OF : Bryson J at 1

COUNSEL : P.H. Blackburn-Hart - Plaintiffs M. Pesman - Defendant SOLICITORS : The Law Firm of Solari's - Plaintiffs Verekers - Defendant CATCHWORDS : VENDOR and PURCHASER - matters arising between contract and completion - Rescission - sale off-the-plan of home unit in proposed Strata Plan of building not yet built - Special Condition gave vendor right of rescission if Strata Plan not registered by 16 March 2001 - power to extend for delays exercised and extended to 15 August 2001 - vendor rescinded soon after 15 August 2001 - at time of exchange completion predicted before Olympic Games - main building work commenced December 2000 - no building contract signed until March 2001 - completion of registration expected March 2002 - found that non-registration was caused by breaches of contract by vendor and purported rescission was not effective. Plumor Pty Ltd v. Handley (1996) 41 NSWLR 30 Hunyor v. Tilelli (1997) 8 BPR [97667] 15,629 CASES CITED : Peters (W.A. Ltd) v. Petersville Ltd (2001) 75 ALJR 1385 Selkirk v. Romar Investments Ltd [1963] 1 WLR Woodcock v. Parlby Investments Pty Ltd (1988) 4 BPR 9568 Pierce Bell Sales Pty Ltd v. Frazer (1973) 130 CLR 575 at 590 DECISION : Declaration that contract is valid and subsisting. See para [37] of the judgment.