SHIMDEN PTY LTD v RONA [2006] NSWCA 256

(2007) ANZ Conv R 13 Reported Decision : (2007) Q Conv R 54-660 (2006) NSW ConvR 56-166

New South Wales Court of Appeal

CITATION: SHIMDEN PTY LTD v RONA [2006] NSWCA 256

HEARING DATE(S): 31/08/2006

JUDGMENT DATE: 19 September 2006

JUDGMENT OF: Handley JA at 1; Hodgson JA at 2; Bryson JA at 3

DECISION: (1) The appeal is allowed to the extent only of varying the orders of White J by deleting Declarations 1 and 2; (2) Save as aforesaid the orders of White J are affirmed; (3) The Cross-appeal is dismissed; (4) Order that the appellant pay the respondent's costs of the appeal; (5) Order that each party pay its or his own costs of the cross-appeal

CATCHWORDS: VENDOR AND PURCHASER – rescission of contract of sale of land – S.C.45, not a standard clause, authorised rescission by either party if vendor unable to provide registered lease and discharge of covenant by "completion date" – whether "completion date" was actual time of completion or completion date as stated by terms of contract – held, the latter. Consideration of questions relating to the effect of steps taken by parties in reliance on conflicting positions on effect of purchaser's termination for non-compliance with S.C.45. Observations on significance of notice period before termination became effective.

Aberfoyle Plantation Ltd v Cheng [1968] AC 115 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Breen v Williams (1996) 186 CLR 71 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Foran v Wight (1989) 168 CLR 385 CASES CITED: Gilbert & Anor v Healey Investment Pty Ltd [1975] 1 NSWLR 650 Heimann v The Commonwealth of Australia (1938) 38 SR 691 Rawson v Hobbs (1961) 107 CLR 466 Secured Income Real Estate v St Martin's Investments Pty Ltd (1979) 144 CLR 596 Treloar Nominees Pty Ltd v Buttrey (1977) 1 BPR 9672 Turnstila Pty Ltd v North Shore Gas Co. Ltd (1981) NSW Conv R 55-011