Gauld v Obsidian Holdings Pty Ltd [2009] NSWSC 924

New South Wales Supreme Court

CITATION : Gauld v Obsidian Holdings Pty Ltd [2009] NSWSC 924

HEARING DATE(S) : 24/08/09

JUDGMENT DATE : 24 August 2009

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 24 August 2009

DECISION : Refer to paras 39-41of judgment.

CATCHWORDS : CONTRACTS - building, engineering and related contracts – contracts for purchase of units off the plan - obligation on vendor to use all reasonable endeavours to register strata plan – failure to use all reasonable endeavours precluded vendor from rescinding contracts – contracts validly rescinded by purchasers

LEGISLATION CITED : Environmental Planning and Assessment Act 1979 (NSW) Civil Procedure Act 2005 (NSW)

CATEGORY : Principal judgment

CASES CITED : Plumor Pty Ltd v Handley (1996) 41 NSWLR 30 Masters v Belpate Pty Ltd [2001] NSWSC 169 Munro v Bodrex Pty Ltd [2002] NSWSC 122

Elishia Nicole Franczis Gauld & 10 Ors PARTIES : v Obsidian Holdings & 4 Ors

FILE NUMBER(S) : SC 50176/07

COUNSEL : Plaintiffs: P Silver 2nd Defendant: R F O'Brien

SOLICITORS : Plaintiffs: Slater & Gordon Defendants: n/a

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

WHITE J

Monday, 24 August 2009

50176/07 Elishia Nicole Franczis Gauld & 10 Ors v Obsidian Holdings Pty Ltd & 4 Ors JUDGMENT 1 HIS HONOUR: In this proceeding the plaintiffs bring separate claims arising from seven contracts for the purchase of units off the plan for a proposed development in Hunter Street, Newcastle. 2 The first defendant was the vendor under each contract. The second to fifth defendants guaranteed the first defendant's obligations. The contracts were entered into between 20 February and 20 September 2004. They are in materially the same terms except as to the identity of the purchaser, the property to be purchased, and the purchase price. In each case, the deposit was released to the vendor. 3 Clause 51.4 of each contract provided: " Notwithstanding any other provision in this contract, the purchaser may rescind this contract by written notice to the vendor if: (a) the Development Approval has not been granted by 1 November 2004; or (b) the vendor or Vendor's Guarantor becomes Insolvent; or (c) the Development (including construction of the property) have [sic] not been completed by the 30 June 2007. "