NSW Caselaw
New South Wales Supreme Court
CITATION : Bondi Beach Astra Retirement Village Pty Ltd v Gora [2010] NSWSC 81
HEARING DATE(S) : 26-27 November 2009
JUDGMENT DATE : 19 February 2010
JUDGMENT OF : Bryson AJ at 1
DECISION : Give judgment for the defendants with costs.
CATCHWORDS : STRATA TITLES – VENDOR AND PURCHASER – Option to purchase land – Bondi Beach Astra Retirement Village – Developer sold unit to Mr and Mrs Evans and Special Condition required them to enter into Occupancy Agreement and Buy-back Deed with plaintiff BBA (not the vendor) – Those documents gave permanent pre-emption and option to purchase rights at original sale price on events including vacation of unit and deaths of unit owners: After deaths of Evans in 1995 and 1997 BBA purportedly exercised option in 1999 but contracts were not exchanged, no deposit paid and no move towards completion after July 1999 – BBA revived claim to purchase in 2007, gave a fresh notice of exercise and sued for specific performance. - HELD (1) Notice of Exercise in 2007 had no effect because of time limit on options imposed by s 167 of Retirement Villages Act 1999. (2) BBA could not rely on 1999 exercise because of laches. (3) Further, the pre-emptive and buyback provisions were void as restraints on alienation of freehold land. - Consideration of events in course of conduct of affairs of Bondi Beach Astra Retirement Village.
Perpetuities Act 1984 s 15 LEGISLATION CITED : Real Property Act 1900 Retirement Villages Act 1999 Strata Titles Act 1973 s58
CATEGORY : Principal judgment
Caboche & Bond v Ramsay (1993) 119 ALR 215 Hall v Busst (1960) 104 CLR 206 John Nitschke Nominees Pty Ltd v Hahndorf Golf Club Inc [2004] SASC 128 (Full Court) Laybutt v Amoco Australia Pty Limited (1974) 132 CLR 57 Mackay v Wilson (1947) 47 SR(NSW) 315 Moraitis Fresh Packaging (NSW) Pty Ltd v Fresh Express (Australia) Pty Ltd [2008] NSWCA 327 CASES CITED : Nullagine Investments Pty Ltd v The Western Australian Club Inc (1993) HCA 45; (1993) 177 CLR 635 Prudential Assurance Co Ltd v Health Minders Pty Limited (1987) 9 NSWLR 673 Reuthlinger v Macdonald and others (1976) 1 NSWLR 88 Reuthlinger v Macdonald & Ors unreported 20 October 1976 (L W Street CJ, Glass and Samuels JJA) Tonitto v Bassal (1992) 28 NSWLR 564 Wollondilly Shire Council v Picton Power Lines Pty Ltd (1994) 33 NSWLR 551 Young v Lamb [2001] NSWCA 225, 10 BPR 18,553
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