Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1459

Supreme Court New South Wales

Medium Neutral Citation: Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1459 Hearing dates: 20 – 28 July, 30 July and 3 September 2015; further written submissions received 16 and 22 September 2015 Decision date: 06 October 2015 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Proceedings to be dismissed Catchwords: CONTRACT – contracts for the purchase of units "off the plan" – completion subject to registration of draft strata documents – contractual obligation that before completion vendor must procure construction of building in a proper and workmanlike manner and generally in accordance with the development consent – further contractual provision that the defendants must use "reasonable endeavours" to register draft strata documents by a specified date for registration – proper construction of the contract – whether defendants' failure to construct the building generally in accordance with terms of development consent necessarily constitutes a breach of their obligation to use "reasonable endeavours" – nature of the obligation to use "reasonable endeavours"; VENDOR and PURCHASER – whether defendants purported rescission of the contracts on the basis that strata documents were not registered by the specified dates for registration was valid – whether the defendants failed to use "reasonable endeavours" to register the draft strata documents by the relevant dates – whether the strata documents could have been registered by the relevant dates had the defendants used reasonable endeavours; EVIDENCE – whether Ferrcom inference should be drawn in circumstances where a matter was not addressed in affidavit material or evidence-in-chief, but witness was taken to the matter in cross-examination Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) Cases Cited: Adderley v Dixon (1824) 1 Sim & St 607; 57 ER 239 AJDJ Pty Ltd v Pacific West Developments Pty Ltd [2001] NSWSC 1174 Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Coulls v Bagot's Executor & Trustee Company Ltd (1967) 119 CLR 460 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 Gauld v Obsidian Holdings Pty Ltd [2009] NSWSC 924 Hardy v Wardy [2001] NSWSC 1141 Hart v MacDonald (1910) 10 CLR 417 Hawes v Cuzeno Pty Ltd [1999] NSWSC 1167 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Hunyor v Tilelli (1997) 8 BPR 15,629 Jolley v Carmel Ltd [2000] 2 EGLR 153 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Mackay v Dick (1881) 6 App Cas 251 Masters v Belpate Pty Ltd [2001] NSWSC 169 Munro v Bodrex Pty Ltd [2002] NSWSC 122 Peters (WA) Ltd v Petersville Ltd [2001] HCA 45; 205 CLR 126 Pianta v National Finance & Trustees Ltd [1964] HCA 61; 180 CLR 146 Plumor Pty Ltd v Handley (1996) 41 NSWLR 30 Rhodia International Holdings Ltd v Huntsman International LLC [2007] EWHC 292 Schenk v ACN 081 123 140 Pty Ltd [2002] NSWSC 123 Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Stepping Stones Child Care Centre (ACT) Pty Ltd v Early Learning Services Ltd [2013] ACTSC 173 Terrell v Mabie Todd & Co Ltd (1952) 69 RPC 234 The Owners Corporation of Strata Plan 62254 v Rockdale City Council [2008] NSWSC 392 The Owners – Strata Plan No 69312 v Rockdale City Council; Owners of SP 69312 v Allianz Aust Insurance [2012] NSWSC 1244 Transfield Pty Ltd v Arlo International Ltd (1980) 144 CLR 83 Wardy v Hardy [2002] NSWCA 215 Williamson & McGillivray v JIA Holdings Pty Ltd [2011] QCA 346 Texts Cited: J W Carter, The Construction of Commercial Contracts, (2013, Hart Publishing) K Lewison and D Hughes, The Interpretation of Contracts in Australia, (2012, Lawbook Co.) I C F Spry, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages, (9th ed 2014, Lawbook Co.) Category: Principal judgment Parties: Qi Wang (First Plaintiff) Jue Li (Second Plaintiff) Xiaoyan Xi (Third Plaintiff) Bin Wang (Fourth Plaintiff) Xiaozheng Lao (Fifth Plaintiff) Siping Xia (Sixth Plaintiff) Meng Shi (Seventh Plaintiff) Yijie Wang (Eighth Plaintiff) Yu Di Xi (Ninth Plaintiff) Qian Li Yan (Tenth Plaintiff) Kai Jie Gu (Eleventh Plaintiff) Li Ye (Twelfth Plaintiff) Jia Jia Ye (Thirteenth Plaintiff) Yanchong Wei (Fourteenth Plaintiff) Zhen Jiang Li (Fifteenth Plaintiff) Lisa Chan (Sixteenth Plaintiff) Peter Ray (Seventeenth Plaintiff) Hai Xu (Eighteenth Plaintiff) Chao Lu Ye (Nineteenth Plaintiff) Na Lu (Twentieth Plaintiff) Liang Qiao (Twenty-first Plaintiff) Jiannan Zhang (Twenty-second Plaintiff)) Jie Ma (Twenty-third Plaintiff) Qian Lan (Twenty-fourth Plaintiff) Ling Xu (Twenty-fifth Plaintiff) Ahmed Nizamuddin (Twenty-sixth Plaintiff) Alexander Lissaman (Twenty-seventh Plaintiff) Yingqi Wang (Twenty-eighth Plaintiff) Liu Qing Xu (Twenty-ninth Plaintiff) Junfeng Wang (Thirtieth Plaintiff) Wen Shi (Thirty-first Plaintiff) Shaocong Zhou (Thirty-second Plaintiff) Yibing Zhou (Thirty-third Plaintiff) Boying Gu (Thirty-fourth Plaintiff) Yonglan Shen (Thirty-fifth Plaintiff) Lili Gu (Thirty-sixth Plaintiff) Weidong Li (Thirty-seventh Plaintiff) Wei Huang (Thirty-eighth Plaintiff) Can Zhao (Thirty-ninth Plaintiff) Helen Hoi Peng Fong (Fortieth Plaintiff) Huey Ling Liew (Forty-first Plaintiff) Jian Zhong Wu (Forty-second Plaintiff) Tianjiao Liu (Forty-third Plaintiff) Kaymet Corporation Pty Limited (First Defendant) Toufic Bachara Kayrouz (Second Defendant) Lichah Kayrouz (Third Defendant) William Joseph Metlej (Fourth Defendant) Representation: Counsel: A J McInerney SC with S Jacobs (Plaintiffs) F C Corsaro SC (from 23 July 2015) with P J Bambagiotti and M Auld (Defendants)