NSW Caselaw
Reported Decision : (2007) ANZ Conv R 187
New South Wales Supreme Court
CITATION : Hilary Ignatius Lantry & Anor v Tomule Pty Ltd & 2 Ors [2007] NSWSC 81
HEARING DATE(S) : 29-30/01/07
JUDGMENT DATE : 31 January 2007
JURISDICTION : Equity Division
JUDGMENT OF : White J
EX TEMPORE JUDGMENT DATE : 31 January 2007
DECISION : See paragraphs 91, 93 and 94 of judgment.
CATCHWORDS : Contracts – Vendor and purchaser – rescission of contract of sale of land – Condition precedent to parties' obligations to complete – S.C.23 authorised rescission by either party if vendor unwilling or unable to obtain a Building Certificate prior to completion – Vendors' failure to satisfy condition precedent – No requirement that purchaser establish that vendors were "wholly and finally" unwilling or unable to carry out work required for issue of Building Certificate – No requirement that purchaser establish that he was ready, willing and able to complete before entitled to exercise right to rescind – Whether purchaser in breach of term requiring provision of documents for transfer of liquor licence – Whether timely compliance waived - Purchaser not precluded from exercising right of rescission where purchaser's breach did not contribute to the vendors' non-fulfilment of S.C.23 – Held that purchaser's rescission valid.
Conveyancing Act 1919 (NSW) LEGISLATION CITED : Environmental Planning Assessment Act 1979 (NSW) Building Code of Australia Civil Procedure Act 2005 (NSW)
Suttor v Gundowda Pty Limited (195) 81 CLR 418 Gange v Sullivan (1966) 116 CLR 418 at 442 Perri v Coolangatta Investments Pty Limited (1982) 149 CLR 537 Aberfoyle Plantations Ltd v Khaw Bian Cheng [1960] AC 115 CASES CITED : Shimden Pty Limited v Rona [2006] NSWCA 256 Immer (No. 145) Pty Ltd v The Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26 Foran v Wight (1989) 168 CLR 385 Jeppesons Road Ltd v Di Domenico [2005] QCA 391 Nina's Bistro Bar Ltd (formerly Mytcoona Pty Ltd) v MBE Corporation (Sydney) Pty Ltd [1984] 3 NSWLR 613 Road Show Entertainment Pty Ltd v (ACN 053 006 269) Pty Ltd (1997) 42 NSWLR 462
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