Abourjaily v Parkview Estate Pty Ltd

In Abourjaily v Parkview Estate Pty Ltd, the plaintiff, Mr Abourjaily, sought to enforce a contract for the sale of an “off the plan” property. The dispute centred on whether the vendor, Parkview Estate Pty Ltd, had complied with its contractual obligation to use all reasonable endeavours to have the plan of subdivision registered by a specified date. The case was heard in the Supreme Court of New South Wales. Mr Abourjaily argued that the vendor’s failure to register the plan by the agreed date constituted a breach of contract, thereby entitling him to terminate the contract and seek damages.

The primary legal issues before the court were whether the vendor had indeed used all reasonable endeavours to ensure the plan of subdivision was registered and whether the vendor was entitled to rescind the contract due to this failure. A further issue was whether Mr Abourjaily had waived or lost his right to rescind by not performing his own contractual obligations. The court had to determine the meaning and effect of the clause in the contract that required the vendor to use all reasonable endeavours to secure the registration of the plan.

The court found that the vendor had not used all reasonable endeavours to register the plan of subdivision. The court also held that the right to rescind was not automatically triggered by the vendor’s failure to register the plan but was conditional upon the vendor’s use of all reasonable endeavours. Given that the vendor had not met this requirement, it was not entitled to rescind the contract. The court further determined that Mr Abourjaily had not waived or lost his right to rescind by any actions or inactions on his part. Consequently, the vendor’s attempt to rescind the contract was ineffective.

The court ordered that the contract for the sale of the property would proceed as originally agreed, with the vendor required to complete the registration of the plan of subdivision within a specified period. Additionally, the court awarded costs to Mr Abourjaily for the proceedings.