Al Achrafi v Topic [2016] NSWSC 1807

Supreme Court New South Wales

Medium Neutral Citation: Al Achrafi v Topic [2016] NSWSC 1807 Hearing dates: 29 – 31 August 2016 Decision date: 15 December 2016 Jurisdiction: Equity Before: Robb J Decision: See pars 357 – 362 Catchwords: CONTRACTS – construction of contracts – contract for sale of land – cl 28..2 required defendants as vendors to do "everything reasonable" to cause plan of subdivision to be registered within 12 months after the contract date – cl 28.3.2 permitted the vendor to rescind, but only if the vendor had complied with cl 28.2 – special condition 48 gave parties an unfettered right of rescission if plan of subdivision not registered within 12 months – whether the clauses are inconsistent – consideration of how parties objectively intended the terms to operate – held special condition 30.11 in expressly amending cl 28.2 recognized its effectiveness including cl 28.3.2 – held despite superficial inconsistencies, on proper construction, parties had intended cl 28.3.2 to take effect

REAL PROPERTY – contract for the sale of land – defendants as vendors had a conditional right of rescission if plan of subdivision not registered within 12 months – vendors rescinded when plan of subdivision not registered within period – whether condition satisfied and rescission valid

CONTRACTS – burden of proof – whether the plaintiffs or the defendants had the burden of proving that the condition to the defendants' right to rescind the contract for sale had not been satisfied, or satisfied, as the case may be – consideration of authorities – held defendants had the burden of proving they had satisfied the condition to their right to rescind the contract