Cong Xu v Austino Property Development Pty Ltd [2013] NSWSC 1177

Supreme Court New South Wales

Medium Neutral Citation: Cong Xu v Austino Property Development Pty Ltd [2013] NSWSC 1177 Hearing dates: 19 August 2013 Decision date: 27 August 2013 Jurisdiction: Equity Division Before: Darke J Decision: (1) Declare that the plaintiff validly rescinded the Contract for Sale of Land made on 26 May 2011 between the plaintiff as purchaser and the defendant as vendor in respect of the land described as Lot 1/15 Borrodale Road, Kingsford, by Notice of Rescission dated 8 October 2012. (2) Declare that the plaintiff is entitled, pursuant to the contract, to a refund of the deposit monies paid by the plaintiff in the sum of $126,000, together with all interest earned on those monies. (3) Order that within seven days the defendant authorise the agent holding the deposit monies as stakeholder, known as Property Square Realty, to release the deposit monies and all interest earned thereon to the plaintiff. (4) The parties have liberty to apply in respect of any issues arising out of the declaration and order (2) and (3) above. (5) Order that the defendant's Statement of Cross Claim be dismissed. (6) Order that the defendant pay the plaintiff's costs of the proceedings. Catchwords: CONVEYANCING - Non-compliance with condition - purchaser's remedies - rescission - pursuant to condition giving right to rescind - loss of right - election between inconsistent rights - whether entry into negotiations for early occupation of property was conduct inconsistent with the right to rescind

CONTRACTS - general contractual principles - election - loss of right to rescind - whether entry into negotiations for early occupation of property was conduct inconsistent with the right to rescind a contract for the sale of land Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570 Immer (No. 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26 Sargent v ASL Developments Ltd (1974) 131 CLR 634 Zucker v Straightlace Pty (1986) 11 NSWLR 87 Category: Principal judgment Parties: Cong Xu (Plaintiff) Austino Property Development Pty Ltd (Defendant) Representation: Counsel: J Darams (Plaintiff) E White (Defendant) Solicitors: James Tuite & Associates Lawyers (Plaintiff) Legal Point Lawyers (Defendant) File Number(s): 2013/80287 Publication restriction: Nil