Yogesh Enterprises Pty Ltd v Jury & Anor [2011] NSWSC 131

Supreme Court New South Wales

Medium Neutral Citation: Yogesh Enterprises Pty Ltd v Jury & Anor [2011] NSWSC 131 Decision date: 09 March 2011 Jurisdiction: Equity Division Before: Sackar J Decision: Declaration made in accordance with paragraphs 1 and 2 of the Plaintiffs summons; Defendants to pay the Plaintiff an amount of interest on the deposit; Defendants cross summons to be dismissed; Defendants to pay the Plaintiffs costs of the proceedings Catchwords: Rescission - election Cases Cited: Sargent v ASL Developments Limited (1974) 131 CLR 634 Commonwealth v Verwayen (1990) 170 CLR Tropical Traders Limited v Goonan (1964) 111 CLR 41 Agricultural and Rural Finance Pty Limited (2008) 238 CLR 570 O'Connor v S P Bray (1936) 6 SR (NSW) Smits v Roach (2006) 227 CLR 423 Texts Cited: Corbin "Conditions in the Law of Contract" (1919) 28 Yale LJ 739 Category: Principal judgment Parties: Yogesh Enterprises Pty Ltd (Plaintiff and cross Defendant) David Michael Jury (first Defendant and Cross Claimant) Jamel Jury (second Defendant and Cross Claimant) Representation: Counsel: J Darvall (Plaintiff) S Wells (Defendants) Solicitors: Macree Law (Plaintiff) Lazarus Legal Group (Defendants) File Number(s): 2010/002738821

Judgment 1This matter was commenced by summons dated 18 August 2010. In that summons the Plaintiff seeks a declaration that a contract it entered on 8 June 2010 for the purchase of certain land at Unanderra was validly rescinded pursuant to a notice of rescission dated 21 July 2010. A further declaration seeks a return of the deposit paid with interest. 2On 13 October 2010 the Defendants issued a cross summons in which they seek a declaration that the relevant contract has not been validly rescinded. Alternatively the Defendants seek a declaration that the cross defendant is in breach of the contract. Damages (or equitable damages) are sought in the alternative and there was a claim for specific performance. I was told at the hearing that specific performance was no longer pressed.