Anastasia Kalathas v 89 Ebley Street Pty Limited

In the case of Anastasia Kalathas v 89 Ebley Street Pty Limited, the parties were engaged in a dispute concerning the sale of a commercial property that had not yet been constructed. The matter was heard in the Supreme Court of New South Wales. The purchaser, Ms Kalathas, sought to rescind the contract for sale of the commercial property on the basis that the vendor, 89 Ebley Street Pty Limited, had failed to provide a car space as stipulated in the contract. The vendor had issued a completion notice, an occupation certificate, and subsequently a notice to complete, but the February strata plan did not include a car space allocated to the purchaser’s lot.

The primary legal issue the court needed to decide was whether the purchaser had the right to rescind the contract due to the vendor’s failure to provide a car space as specified in the contract, and if the vendor's actions constituted a repudiatory breach that justified termination of the contract. The court examined whether the February strata plan, the completion notice, and the notice to complete collectively indicated the vendor’s unwillingness or inability to perform the contract by not providing a car space. The court also needed to consider whether the purchaser’s decision to terminate the contract was justified based on the vendor’s conduct.

The court found that the vendor’s conduct, including the issuance of the February strata plan that omitted the car space and the subsequent notices to complete, amounted to a repudiatory breach. The absence of a car space on the registered strata plan and the vendor's subsequent actions led the purchaser to reasonably conclude that the vendor was not proposing to convey a car space as agreed. The court held that the purchaser was entitled to terminate the contract and return of her deposit, as the vendor was not in a position to complete the contract as per the terms of the agreement. The fact that the vendor later registered a new strata plan and was able to complete the contract did not alter the outcome, as the vendor’s initial conduct had already justified the purchaser’s decision to terminate.

The court ruled in favour of the purchaser, ordering the return of her deposit and affirming the termination of the contract due to the vendor’s repudiatory conduct.