DGF Property Holdings Pty Limited v Di Federico; DGF Property Holdings Pty Limited v Butros [2018] NSWSC 344

Supreme Court New South Wales

Medium Neutral Citation: DGF Property Holdings Pty Limited v Di Federico; DGF Property Holdings Pty Limited v Butros [2018] NSWSC 344 Hearing dates: 20, 21, 22, 23, 24 November 2017; Submissions 12 March 2018 Decision date: 23 March 2018 Jurisdiction: Equity Before: Emmett AJA Decision: 1. The plaintiff (DGF) notify the Court and the defendants in proceedings 2015/105403 (the Di Federicos) in writing within 14 days of its calculation of the amount of damages in accordance with the reasons published today. 2. The Di Federicos notify the Court and DGF in writing within 14 days after receipt of such notification whether they wish to dispute that the calculation of such damages has been made in accordance with the reasons. 3. DGF notify the Court and each of the First to the Fifteenth Defendants in proceedings 2016/246532 (the Purchasers) in writing within 14 days whether it proposes to proffer an undertaking to the Court along the lines indicated in the reasons published today. 4. Each party notify all other parties within 14 days whether that party wishes to make any submissions in relation to: (i) costs and the apportionment of costs as between proceedings 2016/246532 and proceedings 2015/105403; (ii) the appropriate rate for the adjustment of the purchase price; and (iii) the period for which the rate should be applied. 5. Both proceedings be listed for further directions on a date convenient to the parties and the Court for the purpose of making further orders for the progress and final disposition of both proceedings. Catchwords: REAL PROPERTY – vendor sought rescission of eight off the plan contracts – vendor applied under s 66ZL of the Conveyancing Act 1919 for orders permitting rescission in the absence of purchaser consent – whether right to rescind arose – whether vendor had lost right to rescind by failing to exercise right to rescind at an earlier time – whether court should exercise discretion to permit vendor to exercise contractual right to rescind – whether vendor satisfied the Court that making orders permitting rescission would be just and equitable in all the circumstances Legislation Cited: Conveyancing Act 1919 (NSW) Water Management Act 2000 (NSW) Cases Cited: Al Achrafi v Topic [2016] NSWSC 1807 Immer (No 1450) Pty Ltd v Uniting Church of Australia Property Trust 182 CLR 26 New Zealand Shipping Co v Société des Ateliers et Chantiers de France [1919] AC 1 Sargent v ASL Developments Limited (1974) 131 CLR 364 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Texts Cited: Handley: Estoppel by Conduct and Election (Sweet and Maxwell, 2016, 2nd ed) Category: Principal judgment Parties: In Matter No 2015/105403 DGF Property Holdings Pty Limited (Plaintiff and First Cross Defendant) Enzo Di Federico (First Defendant and First Cross Claimant) Franca Di Federico (Second Defendant and Second Cross Claimant)