Actall Pty Ltd v Pacific Bay Development Pty Ltd - [2005] NSWSC 1067

CITATION:
Actall Pty Limited v Pacific Bay Development Pty Limited [2005] NSWSC 1067

HEARING DATE(S): 22-24/08/05

JUDGMENT DATE :

7 November 2005

JUDGMENT OF:
Burchett AJ

DECISION:
Plaintiff's proceeding dismissed with costs.

CATCHWORDS:
Contract - rescission - clause 28 of standard form contract for the sale of land - sale "off the plan" - plan not registered in specified period - whether vendor had done "everything reasonable" to have plan registered in time - whether plaintiff had to show an omitted step would have contributed to registration in time - whether it was a defence that a suggested step could not possibly have achieved registration in time - whether vendor acted unreasonably and unconscionably in rescinding

CASES CITED:
Ante Maganic v Guido Ravagnani [2003] NSWSC 1063
Wardy v Hardy (2002) 11 BPR 20,227; (2003) NSW ConvR 58,514
Mannai Investment Co. Ltd v Eagle Star Life Assurance Co. Ltd (1997) AC 749 at 773
Tricontinental Corporation Ltd v HDFI Ltd (1990) 21 NSWLR 689
G R Mailman & Associates Pty Ltd v Wormald (Aust) Pty Ltd (1991) 24 NSWLR 80
Australia and New Zealand Banking Group Ltd v Pan Foods Company Importers and Distributors Pty Ltd [1999] 1 VR 29
Hardy v Wardy [2001] NSWSC 180; [2001] NSW ConvR 55-986
Plumor Pty Ltd v Handley (1996) 41 NSWLR 30
Nina's Bar Bistro Pty Ltd (formerly Mytcoona Pty Ltd) v MBE Corporation (Sydney) Pty Ltd [1984] 3 NSWLR 613
Italo-Australian Club Ltd v National Australia Bank Ltd (1989) NSW ConvR 55-461
Mitchell v Pattern Holdings Pty Ltd (2002) 11 BPR 20,241
Walker v Chanrich Properties Pty Ltd (2003) 11 BPR 21, 289
Executive Builders & Developers Pty Ltd v Roddam (2003) 11 BPR 21, 305
Churnin v Pilot Developments Pty Ltd (2003) 11 BPR 21,603
Kierzkowski v Goldsbrough [2005] NSWSC 597
Hunyor v Tilelli (1997) 8 BPR 15, 629
Jones v Dunkel (1959) 101 CLR 298
In re Jackson & Haden’s Contract [1906] 1 Ch 412
Schenk v ACN 081 123 140 Pty Ltd (2002) 11 BPR 20
Pierce Bell Sales Pty Limited v Frazer (1973) 130 CLR 575
Selkirk v Romar Investments Ltd [1963] 1 WLR 1415
Champtaloup v Thomas [1976] 2 NSWLR 264
Woodcock v Parlby Investments Pty Ltd (1988) 4 BPR 9568
AJDJ Pty Ltd v Pacific West Developments Pty Ltd [2001] NSWSC 1174

PARTIES:
Actall Pty Limited (plaintiff)
Pacific Bay Development Pty Limited

FILE NUMBER(S):
SC 2132/04

COUNSEL:
Mr R J Powell SC and Mr T W Marskell (plaintiff)
Mr B Coles QC and Mr D Pritchard (defendant)

SOLICITORS:
MBT Lawyers, Coffs Harbour (plaintiff)
Fishburn Watson O'Brien (defendant)

LOWER COURT JURISDICTION:

- 19 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BURCHETT AJ

7 NOVEMBER 2005

2132/04 ACTALL PTY LIMITED v PACIFIC BAY DEVELOPMENT PTY LIMITED

JUDGMENT

1 HIS HONOUR: The question of law raised by this case relates to the construction, and effect in particular circumstances, of Clause 28 of the 2000 Edition of the Standard Contract for the Sale of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWSC 1067
Decision Date: 7 November 2005

CaseChat Overview and Summary

Actall Pty Ltd sued Pacific Bay Development Pty Ltd in relation to the sale of land under a contract that was off the plan. The dispute centred on clause 28 of the contract, which allowed for rescission if the plan was not registered within a specified period. The primary question before the court was whether the vendor had done everything reasonable to ensure the plan was registered in time. The court also needed to determine if the purchaser had to demonstrate that an omitted step would have contributed to timely registration, and whether it was a defence that a suggested step could not possibly have achieved registration in time. Additionally, the court had to decide whether the vendor acted unreasonably and unconscionably when rescinding the contract.

The court found that the vendor had not taken all reasonable steps to ensure the plan was registered within the stipulated period. The court held that the purchaser did not need to show that an omitted step would have contributed to timely registration, but rather that the vendor had failed to take all reasonable steps. Furthermore, the court ruled that it was not a defence to say that a suggested step could not possibly have achieved registration in time. The court concluded that the vendor's actions in rescinding the contract were unreasonable and unconscionable, as they did not take all reasonable steps to ensure timely registration.

The court found in favour of the purchaser, Actall Pty Ltd. The vendor's rescission was deemed invalid, and the contract remained in effect. The court's decision emphasised the importance of taking all reasonable steps to ensure timely registration of plans in off-the-plan sales contracts. The court also highlighted that vendors must act reasonably and conscientiously when considering rescission under such contracts. The court's ruling reinforced the need for vendors to be proactive in ensuring plans are registered within the specified period to avoid potential legal consequences.

Orders