[1] Kierzkowski & Anor v. Goldsbrough; [2] Pinches & Anor v. Goldsbrough; [3] Tucker & Anor v. Goldsbrough [2005] NSWSC 597

New South Wales Supreme Court

CITATION : [1] Kierzkowski & Anor v. Goldsbrough; [2] Pinches & Anor v. Goldsbrough; [3] Tucker & Anor v. Goldsbrough [2005] NSWSC 597

HEARING DATE(S) : 14 June 2005

JUDGMENT DATE : 14 June 2005

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Specific performance ordered.

CATCHWORDS : CONTRACT - RESCISSION - Whether vendor had done everything reasonable to procure registration of plan of subdivision within stipulated time.

Hardy v Wardy (2001) 10 BPR 19,055 CASES CITED : Mehmet v Benson (1965) 113 CLR 295 Wardy v Hardy (2002) 11 BPR 20,227

[1] Peter Roman Kierzkowski - First Plaintiff [1] Roslyn Marie Kierzkowski - Second Plaintiff [2] Paul Pinches - First Plaintiff PARTIES : [2] Kylee Pinches - Second Plaintiff [3] Ian Tucker - First Plaintiff [3] Lee Tucker - Second Plaintiff [1], [2] & [3] Brettnall Thomas Goldsbrough - Defendant

FILE NUMBER(S) : SC [1] 1498/04; [2] 1516/04; [3] 1887/04

G.A. Sirtes, Ms S. Mason - Plaintiffs [1], [2] & [3] COUNSEL : J. White - Defendant [1], [2] & [3]

Morton & Harris - Plaintiffs [1], [2] & [3] SOLICITORS : Colin Biggers & Paisley - Defendant [1], [2] & [3]

LOWER COURT JURISDICTION :

Ex tempore

Introduction

1 The Defendant in each of these three proceedings is the registered proprietor of a substantial parcel of vacant land, being Lots 4 and 6 in Deposited Plan 1025204 located on the Pacific Highway at Conjola in New South Wales ("the Land"). The Plaintiff in each of the proceedings entered into a contract with the Defendant to purchase a lot in an unregistered plan of subdivision of the land. Save for the date of the contract, each of those contracts is in the same terms so far as is presently relevant. 2 Clause 28.2 of the contracts provides: "The vendor must do everything reasonable to have the plan [granting of subdivision creating title to the separate lots the subject of the contracts for sale] registered within 9 months after the contract date, with or without any minor alteration to the plan or any document to be lodged with the plan validly required or made under legislation." 3 Clause 28.3 relevantly provides that if the plan of subdivision is not registered within nine months the vendor can rescind, but only if he has complied with his obligations under clause 28.2. 4 The contracts for sale had been entered into in March and April 2003. On 27 October 2003 the Defendant's solicitor wrote to the solicitors for each of the Plaintiffs in terms which are identical so far as is presently relevant. The letters stated "Messrs Rygate and West as the engineering surveyors acting on behalf of our client originally contacted Integral Energy on 7 March 2003 in relation to the supply of electricity to the subdivision and a copy of the letter of instruction of 7 March 2003 is enclosed. Since that date, Messrs Rygate and West have made numerous phone calls to Integral Energy in an endeavour to obtain a design and construction plan and a quote for the cost of same in respect of the required electricity extension to the land the area of the subdivision.