Noon v Bondi Beach Astra Retirement Village Pty Ltd [2010] NSWCA 202

New South Wales Court of Appeal

CITATION: Noon v Bondi Beach Astra Retirement Village Pty Ltd [2010] NSWCA 202

HEARING DATE(S): 25 March 2010

JUDGMENT DATE: 19 August 2010

JUDGMENT OF: Giles JA at [1]; Macfarlan JA at [126]; Young JA at [127]

(1) Appeal allowed. DECISION: (2) Orders of Smart AJ set aside. (3) Order that, in lieu, the proceedings be dismissed. (4) Order that the respondents pay the appellants' costs both of the trial and of the appeal.

CATCHWORDS: Contracts- whether contract of sale under which on completion purchaser obtained fee simple of home unit can be a "Residence Contract" under Retirement Villages Act 1989- (by majority "No"). Contracts- Construction- how far may court construe a provision naming X as grantee to be a mistaken reference to a grant to Y. Conveyancing- Retirement Unit- provision in purchase contract that service company have right to "buy back" unit for original purchase price as adjusted- service company not a party to contract- service company purported to exercise option- submitted this was as agent for vendor- whether option enforceable ("No")- whether affected by Conveyancing Act 1919, s 66ZG (by majority, "Yes")- whether void as restraint on alienation ("No")- held option not exercised. Estoppel- Conventional Estoppel- conduct constituting alleged estoppel predating binding contract- vague representations in favour of non party to contract- no estoppel.

Conveyancing Act 1919, ss 36C, 66ZC, 66ZE, 66ZG Conveyancing Amendment Act 1997 Conveyancing (Sale of Land) Amendment Act 1990 LEGISLATION CITED: Fair Trading Act 1987, s 75 Retirement Villages Act 1989, ss 3(1), 38 Retirement Villages Act 1999 Retirement Villages Code 1995, cll 2, 3, 13, 24, 27, 29 Quia Emptores 18 Ed 1, Ch 1 (1290)