1128 CG Pty Ltd (ACN 662 166 645) as trustee for the 1128 CG Unit Trust v MH Affordable Homes on Kelly Pty Ltd (ACN 619 338 591)

The case involved a dispute between 1128 CG Pty Ltd, as trustee for the 1128 CG Unit Trust, and MH Affordable Homes on Kelly Pty Ltd. The dispute arose from off-the-plan sales of a property, where the purchaser claimed an interest in the land prior to the registration of the subdivision, which would compete with a later bona fide purchaser. The court was required to determine whether the off-the-plan purchasers had an interest in the land prior to registration of the subdivision, and if so, whether this interest was sufficient to compete with the later purchaser.

The primary legal issues the court had to decide were the nature of the interest held by the off-the-plan purchasers before the registration of the subdivision, and whether this interest could compete with the later purchaser. Additionally, the court had to consider the proper construction of the pre-sale contracts, and whether these contracts ended after the expiry of a specified date. The court also needed to determine if the holder of the earlier interest had engaged in conduct that could potentially postpone their interest, and whether the purchaser was ready, willing, and able to perform the contract of sale.

The court held that the off-the-plan purchasers did not have an interest in the land prior to registration of the subdivision that was sufficient to compete with the later purchaser. The court found that the nature of the interest held by the off-the-plan purchasers was not sufficient to give them priority over the later purchaser. The court also held that the pre-sale contracts did not end after the expiry of the specified date, and that there was no postponing conduct by the holder of the earlier interest. Finally, the court found that the purchaser was not ready, willing, and able to perform the contract of sale.

The court did not make any orders in this case, as the dispute was resolved through the legal determinations made by the court. The court's decision clarified the nature of the interest held by off-the-plan purchasers prior to registration of the subdivision, and provided guidance on the proper construction of pre-sale contracts.