Scott v Ennis-Oakes [2019] NSWSC 1257

Supreme Court New South Wales

Medium Neutral Citation: Scott v Ennis-Oakes [2019] NSWSC 1257 Hearing dates: 16 September 2019 Date of orders: 23 September 2019 Decision date: 23 September 2019 Jurisdiction: Equity Before: Darke J Decision: Plaintiffs' claim for loss of bargain damages fails. Proceedings dismissed with costs. Catchwords: LAND LAW – contract for sale of land – claim for loss of bargain damages – vendor and purchasers entered into contract for sale of lot in proposed subdivision – term of contract required plan of subdivision to be lodged for registration as soon as practicable and with due expedition – contract gave either party right to rescind if plan of subdivision not registered within 12 months – vendor purported to rescind contract on basis that registration of plan of subdivision did not occur within 12 months – purchasers thereupon commenced proceedings for specific performance of contract – vendor subsequently rescinded contract pursuant to a different contractual provision – purchasers accept the validity of that rescission – purchasers abandon claim for specific performance and instead seek loss of bargain damages – whether loss of bargain damages recoverable – contract not terminated for wrongful conduct of vendor – no claim for loss of bargain damages had accrued by the time of the rescission – loss of bargain damages not recoverable Legislation Cited: Conveyancing Act 1919 (NSW), s 66ZL Conveyancing Amendment (Sunset Clauses) Act 2015 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 36.16 Cases Cited: Carr v J A Berriman Pty Ltd (1953) 89 CLR 327 Dominion Coal Co. Ltd v Dominion Iron & Steel Co. Ltd [1909] AC 293 Heyman v Darwins Ltd [1942] AC 356 McRoss Developments Pty Ltd v Caltex Petroleum Pty Ltd (2004) 11 BPR 21,615; [2004] NSWSC 183 Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444 Peter Turnbull & Company Pty Ltd v Mundus Trading Company (Australasia) Pty Ltd (1954) 90 CLR 235 Ronnoc Finance v Spectrum Network Systems Ltd (1997) 45 NSWLR 624 Silver Star Fashions Pty Ltd v Dal Broi (2018) 19 BPR 38813; [2018] NSWSC 1445 Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 Tamanna v Zattere (2017) 18 BPR 37,139; [2017] NSWSC 1388 Upper Hunter Timbers Pty Ltd v Forestry Commission of NSW [1999] NSWCA 125 Texts Cited: J D Heydon, Heydon on Contract (Lawbook Co., 2019) J W Carter, Contract Law in Australia (Sixth Edition, 2013, LexisNexis Butterworths) P J Butt, The Standard Contract for Sale of Land in New South Wales (Second Edition, 1998, LBC Information Services) Category: Principal judgment Parties: Kylie Anne Scott (First Plaintiff) Bradley John Scott (Second Plaintiff) Nicole Rae Ennis-Oakes (Defendant) Representation: Counsel: Mr A D Crossland (Plaintiffs) Mr J C Kelly SC with Mr M F Newton (Defendant)