Victorsen v Easy Living Holdings Pty Ltd [2019] NSWSC 1721

Supreme Court New South Wales

Medium Neutral Citation: Victorsen v Easy Living Holdings Pty Ltd [2019] NSWSC 1721 Hearing dates: 25 – 26 November 2019 Date of orders: 05 December 2019 Decision date: 05 December 2019 Jurisdiction: Equity Before: Darke J Decision: Plaintiffs held to be entitled to rescind contract. Order made for first defendant to refund the deposit paid by the plaintiffs. Catchwords: LAND LAW – contract for sale of land – claim for rescission pursuant to the rule in Flight v Booth (1834) 1 Bing (NC) 370 – plaintiffs entered into a contract to purchase a proposed lot in an unregistered plan of subdivision – where contract promised that the lot would contain an outdoor area covered by lawn – where defendant changed the location of the on-site stormwater detention tank – tank now built under outdoor area in such a way as to preclude a lawn – all access grates for tank located on the lot – whether material and substantial discrepancy between the subject matter of the contract and the property available to be conveyed – material and substantial discrepancy established – plaintiffs establish entitlement to rescind Legislation Cited: Competition and Consumer Act 2010 (Cth), Schedule 2 ('Australian Consumer Law'), ss 4, 18 Conveyancing Act 1919 (NSW), s 88K Strata Schemes Management Act 2015 (NSW), s 122 Cases Cited: Flight v Booth (1834) 1 Bing (NC) 370; (1834) 131 ER 1160 Higgins v Statewide Developments Pty Ltd (2010) 14 BPR 27,293; [2010] NSWSC 183 Liberty Grove (Concord) Pty Ltd v Yeo (2006) 12 BPR 98,210; [2006] NSWSC 1373 Torr v Harpur (1940) SR (NSW) 585 Vella v Ayshan [2008] NSWSC 84 Zabeel Pty Ltd v Tinsonaz Pty Ltd (1992) 5 BPR 97,414 Category: Principal judgment Parties: Ana Victorsen (First Plaintiff) Trent Monro Victorsen (Second Plaintiff) Easy Living Holdings Pty Ltd (First Defendant) RM Legal Sydney Pty Ltd (Second Defendant) Representation: Counsel: Mr B Phillips (Plaintiffs) Mr A Kaylinger (First Defendant)