Dalsor Pty Limited v Roberts [2003] NSWSC 469

Reported Decision : (2003) NSW ConvR 56-058

New South Wales Supreme Court

CITATION : Dalsor Pty Limited v Roberts [2003] NSWSC 469 HEARING DATE(S) : 16 May 2003 JUDGMENT DATE : 4 June 2003 JURISDICTION: Equity Division JUDGMENT OF : Davies AJ DECISION : Order for rectification and specific performance. See para 26.

CATCHWORDS : Sale of land - whether contract unilaterally rescinded - requirements of notice of rescission - whether notice was an unequivocal notice of rescission or a mere warning of intention to rescind LEGISLATION CITED : Fair Trading Act 1987, s 42 CASES CITED : Lakshmijit v Sherani [1974] AC 605 at 616 Re Weston and Thomas's Contract [1907] 1 Ch 244 PARTIES : Dalsor Pty Limited (Plaintiff) Mervyn Thomas Roberts & Carol Jean Roberts (Defendants) FILE NUMBER(S) : SC 6096/02 COUNSEL : D Cassidy QC (Plaintiff) D Charles (Defendants) SOLICITORS : Galland Elder Lulham (Plaintiff) Lamond Howard & Associates (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

DAVIES AJ

4 JUNE 2003

6096/02 - DALSOR PTY LTD v MERVYN THOMAS ROBERTS & ANOR

Reasons 1 HIS HONOUR: By an agreement in writing dated 4 September 2002, the defendants Mervyn Thomas Roberts and Carol Jean Roberts, sold a block of land, on which a cottage and sheds was erected, to the plaintiff, Dalsor Pty Ltd. The contract was in the form issued by the Law Society of New South Wales and the Real Estate Institute of New South Wales, 2000 ed. The completion date was six weeks from the date of the contract, which would have expired on 16 October 2002. 2 The central issue between the parties is whether the contract was rescinded by a letter dated 31 October 2002 sent by the purchaser's solicitor, Galland Elder Lulham ("Gallands"), to the vendors' solicitors, Lamond Howard & Associates ("Lamonds"). However, I shall need to refer also to some other events which were addressed by counsel. 3 The contract contained a typed special condition 39 which read as follows: "This Contract is conditional upon the Purchaser obtaining Development Approval from the Goulburn City Council for the demolition of the structures erected on the subject land within a period of 4 weeks or any mutually agreed extension thereof from the date hereof. In the event that the approval is not obtained within the time prescribed or approval is obtained in terms not acceptable to the Vendor, the Purchaser may by notice in writing to the Vendor rescind this Contract whereupon the provisions of clause 19 hereof shall apply. In the event that the Vendor does not rescind the Contract within 14 days of the date of approval being communicated to it then this Contract shall proceed to completion." 4 It is agreed that there were two errors in that clause. The word "Purchaser" should be substituted for the word "Vendor" in the fifth last line where it appears in the expression "not acceptable to the Vendor" and in the third last line where it appears in the expression "In the event that the Vendor". Counsel are agreed that an order for rectification should be made.