Kannane & Ors v Demian Developments P/L [2005] NSWSC 1193

New South Wales Supreme Court

Kannane & Ors v Demian Developments P/L [2005] NSWSC 1193 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 27/10/05

JUDGMENT DATE : 25 November 2005

JUDGMENT OF : Brereton J

DECISION : See para 68

CATCHWORDS : CONVEYANCING – Vendor and purchaser – sale of units in unregistered plan – where area of units stated in registered plan differs from area stated in contract plan due to inclusion in latter of wallspace – whether there was a variation or amendment of the strata plan on registration which substantially and detrimentally affected the property to an extent other than minor such as to give rise to a right of rescission under special condition - whether any right of rescission had lapsed – whether special condition implicitly excluded standard condition 28 – whether difference in statement of areas was an alteration to the plan – if so, whether it was other than minor – rule in Flight v Booth – whether there was a misdescription or error in the contract – whether it so affected the subject matter that it might reasonably be supposed that the purchaser might not have contracted at all - whether there was evidence of reliance – damages not awarded as damages do not exceed the deposits for which the vendor must give credit – circumstances do not point to it being unjust or inequitable to permit vendor to retain forfeited deposits.

LEGISLATION CITED : Conveyancing Act, 1919 s 55(2)A

Abraham v Mallon (1975) 1 BPR 9157 Batey v Gifford (1997) 42 NSWLR 710 Edelan Pty Ltd v Forster Pastoral Pty Ltd (1985) 5 BPR 11 Eighth SRJ Pty Ltd v Merity (1997) 7 BPR 15 Fawcett v Holmes (1889) 42 Ch D 150 Flight v Booth (1834) 1 BingNC 370; 131 ER 1160 Hamilton v Munro, (1951) 51 SR (NSW) 250 Havyn Pty Ltd v Webster [2005] NSWCA 182 Howe v Smith (1884) 27 Ch D 89 Little v Piccin (1983) NSWConvR 55-152 CASES CITED : Lucas & Tate (Investments) Pty Ltd v Victoria Securities Limited [1973] 2 NSWLR 268 Mallett v Jones [1959] VR 122 Ockenden v Henly (1858) EB&E 485, 492; 120 ER 590 Omar v El-Wakil [2002] 2 P&CR 36 Perrin v Reynolds (1996) 12 VLR 440 Real Estate Securities Ltd v Kew Golf Links Estate Pty Ltd [1935] VLR 114 Shuttleworth v Clews [1910] 1 Ch 176 Sivakriskul v Vynotas Pty Ltd (VSC, 10 October 1996) Symes v Proprietors of Strata Plan No 31731 [2001] NSWSC 527 Taylor v Raglan Developments Pty Ltd [1981] 2 NSWLR 117