Techno Developers Pty Ltd v The Homes Corporation of Australia [2005] NSWSC 23

New South Wales Supreme Court

CITATION : Techno Developers Pty Ltd v The Homes Corporation of Australia [2005] NSWSC 23

HEARING DATE(S) : 23/12/04

JUDGMENT DATE : 23 December 2004

JURISDICTION : Equity

JUDGMENT OF : Brownie AJ

DECISION : Claim dismissed, other than to order refund of deposits.

CATCHWORDS : Contracts - Implied Terms - Customs or usage - Other questions of fact - No question of principle.

Trade Practices Act LEGISLATION CITED : Conveyancing Act 1919 s55(2A)

Con-Stan Industries of Australia Ltd v Norwich Winter Thur (Australia) Ltd (1986) 160 CLR 226 CASES CITED : Walton v Meadmore, CA (9 October 1975 (unrep))

APPLICANT Techno Developers Pty Ltd PARTIES : DEFENDANT The Homes Corporation of Australia

FILE NUMBER(S) : SC 5195 of 2004

DEFENDANT

COUNSEL : Mr A D Crossland of Counsel

APPLICANT David Milne & Associates SOLICITORS : DEFENDANT Bilbie Dan

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION Enter List Here LIST

BROWNIE AJ

23 December 2004

005195/04 TECHNO DEVELOPERS PTY LTD v THE HOMES CORPORATION OF AUSTRALIA PTY LTD JUDGMENT 1 The parties orally agreed that the defendant would sell to the plaintiff forty-four parcels of land, being part of the land in a large sub-division located near Rutherford. Later there were separate written contracts prepared and exchanged, one for each lot. The present litigation is concerned with only twenty-five of those contracts. 2 Apart from recording different purchase prices, deposits and lot numbers the contracts were identical in their terms. They were in conventional form but contained a number of special conditions, including the following. "40. The vendor agrees, subject to the approval of Maitland City Council to clear all trees from the site nominated by the purchaser. This special condition shall not merge on completion. 41. The vendor shall fill and cut the lot to such an extent to enable the purchaser to prepare a slab on flat ground for a dwelling designed by or on behalf of the purchaser. This special condition shall not merge on completion. 42. The vendor agrees that the buyer may prior to completion commence construction on the property of a dwelling approved by the Maitland City Council."