Fobeza Pty Ltd v James Adam Pty Ltd [2020] NSWSC 597

Supreme Court New South Wales

Medium Neutral Citation: Fobeza Pty Ltd v James Adam Pty Ltd [2020] NSWSC 597 Hearing dates: 11 May 2020 Date of orders: 20 May 2020 Decision date: 20 May 2020 Jurisdiction: Equity Before: Darke J Decision: Declarations made that plaintiff validly rescinded contract for sale and is entitled to a refund of the deposit. Catchwords: CONTRACTS — construction — contract for the sale of proposed lot in plan of subdivision — area of lot affected by area of another proposed lot — sketch plan annexed to contract showed area of other lot as 2001m² — correct figure was 2205m² — purchaser given right to rescind if area of other lot shown as 2100m² or more on registered plan — plan of subdivision as registered showed area of other lot to be 2205m² — purchaser rescinded — vendor claimed that sketch plan should be read as if it showed the correct area (2205m²) — vendor claimed that objective intention of parties was to confer a right of rescission if area shown on registered plan exceeded area shown on sketch plan by 5% — whether mistake in contract can be corrected as a matter of construction — whether literal meaning of language of contract created an absurdity — whether objective intention self-evident — held that a reasonable person in the position of the parties would not appreciate the existence of the error — held no absurdity where area recorded on sketch plan not obviously wrong — held that suggested objective intention not self-evident — held that purchaser validly rescinded the contract Cases Cited: Bank of Queensland v Chartis Australia Insurance Ltd [2013] QCA 183 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Fitzgerald v Masters (1956) 95 CLR 420 Mainteck Services Pty Ltd v Stein Huertey SA (2014) 89 NSWLR 633; [2014] NSWCA 184 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 National Australia Bank Ltd v Clowes [2013] NSWCA 179 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) (2019) 99 NSWLR 317; [2019] NSWCA 11 Category: Principal judgment Parties: Fobeza Pty Ltd (Plaintiff/First Cross-Defendant) James Adam Pty Ltd (Defendant/Cross-Claimant) William Kevin Young (Second Cross-Defendant) Representation: Counsel: Mr D C Price (Plaintiff/First Cross-Defendant) Mr M A Ashhurst SC with Mr G Farland (Defendant/Cross-Claimant)