Wang v Polaris Holdings Rosebery Pty Ltd [2020] NSWSC 213

Supreme Court New South Wales

Medium Neutral Citation: Wang v Polaris Holdings Rosebery Pty Ltd [2020] NSWSC 213 Hearing dates: 2 – 3 March 2020 Date of orders: 11 March 2020 Decision date: 11 March 2020 Jurisdiction: Equity Before: Darke J Decision: Defendant vendor held to have validly terminated contract due to failure of plaintiff purchaser to complete. Defendant held to be entitled to deposit. Plaintiff's claims to have validly rescinded or terminated the contract, or for orders for the return of the deposit, not made out. Catchwords: LAND LAW – contract for sale of land – claim for rescission pursuant to the rule in Flight v Booth (1834) 1 Bing (NC) 370 – plaintiff entered into contract to purchase a stratum lot in an unregistered plan of subdivision – draft plan annexed to contract showed areas at various levels – whether areas should be understood as areas of the lot at those levels or floor areas at those levels – held that areas should be understood as areas of the lot – no substantial discrepancy between the subject matter of the sale and what was able to be conveyed – plaintiff had no right to rescind

LAND LAW – contract for sale of land – deposit – vendor entitled to forfeit deposit upon termination for purchaser's failure to complete – statutory return of deposit – whether vendor made misrepresentation as to floor space in building once constructed – no misrepresentation made by vendor – no grounds for order for return of deposit under s 55(2A) of Conveyancing Act 1919 (NSW)

MISLEADING AND DECEPTIVE CONDUCT – contract for sale of stratum lot in unregistered plan of subdivision – draft plan annexed to contract showed areas of various levels – whether vendor made misrepresentation as to floor space in building once constructed – no misrepresentation made by vendor – vendor did not engage in conduct that was misleading or deceptive or likely to mislead or deceive within the meaning of s 18 of Australian Consumer Law – no grounds for order for return of deposit Legislation Cited: Australian Consumer Law Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Real Property Act 1900 (NSW) Strata Schemes Development Act 2015 (NSW) Strata Schemes (Freehold Development) Act 1973 (NSW) Strata Schemes (Leasehold Development) Act 1986 (NSW) Cases Cited: Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 Flight v Booth (1834) 1 Bing (NC) 370; (1834) 131 ER 1160 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 Victorsen v Easy Living Holdings Pty Ltd [2019] NSWSC 1721 Category: Principal judgment Parties: Yu Wang (Plaintiff/Cross-Defendant) Polaris Holdings Rosebery Pty Ltd (Defendant/Cross-Claimant) Representation: Counsel: Mr C D Wood SC with Mr M Darian-Smith (Plaintiff/Cross-Defendant) Ms J Mee (Defendant/Cross-Claimant)